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et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  n^cessaire.  Les  diagrammes  suivants 
illustrent  la  mdthoda. 


1 

2 

3 

1 

^ 

2 

s 

'      4     . 

:            i_ 

« 

■J$ 


jjotli  CoNGBRss,       .     [Doc.  No.  48."|  Ho*  or  Reps. 

ist  Ses^on.  Executive. 


NAVIGATION  OF  THfc  ST.  LAWRENCE. 


raoX  THB 


PRESIDENT  OF  THE  UNITED  STATES, 


TRANSMITTINa   A    RKFORT  FKOU 


THE  SECRETARY  OF  STATE, 


AXD  TBS   CORRKSPONDBNCE   WITH 


7BB  oovxBzmsxn!'  or  oabat  bsxtazn, 


RBLATIVE   TO   TUB 


\f' 


Free  Navigation  oj  the  River  St.  Lawrence^ 


January  7,  1828. 
n<ad,  and  referred  to  the  Committee  on  Foreig^n  Affair* 


TTASniNGTON  : 

rRIHTBD  BT  OALEB  &  StATOy- 

1828. 


Q,.Vl(,1 


^ 


[Doc.  No.  43.1 


9^ 


Wabhinotoit,  7th  January,  1828. 

To  the  Himse  of  EqpresentaHves  of  the  United  States: 

In  compliance  with  a  resolution  of  the  House  of  Representatives, 
of  the  17th  of  last  month,  I  transmit  to  the  House  a  report  from  the 
Secretary  of  State,  and  the  correspondence  with  the  Government  of 
Great  Britain,  relative  to  the  free  navigation  of  the  river  St.  Law- 
rence. 

JOHN  QUINCY  ADAMS. 


■^   .:, 


*>  •  \ 


ft  {' .  . 


rM 


/ 


)    ■  ■ ,  »^  _      *.  ♦- 


.•;,.  ^-     ,-n 


mmmmUt 


[Doc.  No.  43.  ] 


#■ 


The  Secretary  of  State,  to  whom  has  been  referred  a  resolution  of 
the  House  of  Ue))i-escntativc.s,  of  the  I7th  ultimo,  i-oquesting  tlic 
I'residciit  of  the  United  States  to  communicate  to  that  House,  **  if 
not,  in  his  opinion,  incompatible  witli  the  public  interest,  the  corres- 
pondence of  this  Government  with  that  of  Great  Britain,  relative  to 
the  free  navigation  of  tiie  river  St.  Lawrcnre,"  has  the  honor  to  sub- 
mit to  tlic  Pivsident  the  accompanying  pai>ers,  being  extracts  and 
copies  of  letters  and  documents,  connected  w  itii  that  subject,  and  ex- 
planatory of  the  same. 

II.  CLAY. 

Department  of  State, 

ff'usliington,  5th  Januurtj,  1626.  ' 


LIST  OF  PAPERS 

»iccompanyins  the  report  of  the  Secretary  of  State,  oj  '■'■■:.  5th  January, 

1828. 

Extract.      Mr.  Adams  to  Mr.  Rush,  dated  23d  June,  1823. 


Ml.  Rush  to  Mr.  Adams, 
Mr.  Clay  to  Mr.  Gallatin, 
Mr.  Clay  to  Mr.  Gallatin, 
Mr.  Gallatin  to  Mr.  Clay, 
Mr.  Gallatin  to  Mr.  ClaV, 

B.  Protocol  18. 

N.  Protocol  24. 


12th  August,  1824. 
19th  June,  1826. 
8th  August,  1826. 
21st  September,  182r. 
1st  October,  1827. 


». 


•  ■      ■   ' 


m 


[Doc.  No.  43.] 


Extract  of  a  letter  from  Mr,  Mams  to  Mr.  Ruth,  dated  Department  qf 
State,  9fashington  iBd  June,  18SS. 

«  ^ith  regard  to  the  right  of  that  portion  of  our  people  to  navigate 
the  river  St.  Lawrence,  to  and  fi-om  the  ocean,  it  has  never  yet  been 
discussed  between  us  and  the  British  Government.  I  have  little  doubt 
that  it  may  be  established  upon  the  sound  and  general  principles  of 
the  law  of  nature ;  and  if  it  has  not  been  distinctly  and  explicitily  as- 
serted in  negotiation  with  the  British  Government,  hitherto,  it  is  be- 
cause the  benefits  of  it  have  been,  as  the  committee  remark,  tadUy 
conceded,  or  because  the  interest,  now  become  so  great,  and  daily  ac- 
quiring additional  moment,  has,  it  may  almost  be  said,  originated 
since  the  acknowledgment  of  our  independence  by  the  treaty  of  1783. 

«The  memorial  from  the  committee  of  the  inhabitants  of  Franklin 
county,  New  York,  is  perfectly  correct,  when  it  asserts  this  right 
upon  the  principles  asserted  at  the  period  when  our  right  to  the  navi- 
gation of  the  Mississippi  was  in  question ;  and  so  far  as  the  right,  by 
the  law  nature,  was  maintained  on  the  part  of  the  United  States,  in 
that  case,  so  far  is  the  Government  of  tlio  United  States  bound  to 
maintain,  for  the  people  of  the  Territory  of  Michigan,  and  of  the  States 
of  Illinois,  Indiana,  Ohio,  Pennsylvania,  New  York,  and  Vermont, 
the  natural  right  of  communicating  with  the  ocean,  by  the  only  outlet, 
provided  by  nature,  trom  the  waters  bordering  upon  their  shores. 

**  We  know  that  the  possession  of  both  the  shores  of  a  river,  at  its 
nouth,  has  heretofore  been  held  to  give  the  right  of  obstructing  or 
interdicting  the  navigation  of  it  to  the  people  uf  other  nations,  inha- 
biting the  banks  of  the  river,  above  the  boundary  of  that  in  possession 
of  its  moutli.  But  the  exclusive  right  of  jurisdiction  over  a  river,  ori- 
ginates in'the  social  compact,  and  is  a  right  of  sovereignty.  The  right 
of  navigating  the  river  is  a  right  of  nature,  preceding  it  in  point  of 
time,  and  which  the  sovereign  right  of  one  nation  cannot  annihilate, 
as  belonging  to  the  people  of  another. 

*<  This  principle  has  been  substantially  recognized  by  all  the  parties 
to  the  European  alliance,  and  particularly  by  Great  Britain,  at  the 
negotiation  of  the  Vienna  Congress  treaties.  It  is  recognized  by  the 
stipulations  of  those  treaties,  which  declare  the  navigation  of  the 
Rhine,  the  Necker,  the  Main,  the  Mozelle,  the  Maese,  and  the  Scheldt, 
free  to  all  nations.  The  object  of  tliose  stipulations,  undoubtedly,  was, 
to  make  the  navigation  of  those  rivers  effectively  free  to  all  the  peo- 
pfe  dwelling  upon  their  banks,  and  to  abolish  all  those  unnatural  and 
unjust  restrictions,  by  which  the  people  of  the  interior  of  Germany 
had,  before  that  time,  been  deprived  of  their  natural  outlet  to  the  sea, 
by  the  abuse  of  that  right  of  sovereignty  which  imputed  an  exclusive 


u 


[Doc.  No.  43.] 


botti 
|M>ri 


jurisdiction  and  property  over  a  river  to  tlio  State  possessing  L 
'shores,  at  its   in:iufli>     There  is  no  prinriple  of  national  law  u 
whicli 'those  articles  of  the  Vienna  Congress  treaties  could  be  found- 
ed, which  will  not  apply  to  sustain  the  right  of  the  I'eople  of  this  Union 
to  navigate  the  St.  Lawrence  river  to  the  ocean. 

«  These  ideas  are  suggested  to  you,  to  be  used,  first,  in  conference 
with  the  British  Minister  of  Foreign  Affairs,  and,  afterwards,  if  ne- 
cessary, in  correspondence  with  him.  The  manner  and  the  time  of 
presenting  them,  will,  be  best  Judged  of  by  your  discretion.  By  the 
two  nets  of  Parliament,  of  Sd  Geo.  4,  chs.  44  and  1 19,  the  navigation 
of  the  St  Lawrence,  fi-om  our  Territories  to  the  ocean,  is,  in  fact, 
conceded  to  us.  By  the  first,  from  the  ocean  to  Quebec  ;  and,  by  the  se* 
cond,  from  any  part  of  our  territoricR  to  the  same  port.  But  a  discre- 
tionary power  is  given  to  the  Colonial  Government  in  Canada,  to 
withdraw  the  latter  of  these  concessions,  by  excepting  any  of  the 
Canadian  ports  from  those  to  which  our  vessels  are  by  the  act  made 
admissible  ;  and  the  duties  imposed  by  the  act,  upon  all  those  of  our 
exports  which  could  render  the  trade  profitable,  are  prohibitory. '* 


•'  'i  5 


Extract  of  a  despatch  {Xo.  10)  from  »Vr.  Rush  to  Mr.  Mams,  dated 

LoNDOX,  August  13,  1834. 

"The  act  of  Parliament  of  the  fifth  of  August,  1822,  having  im- 
mediate relation  to  the  commercial  intercourse  between  the  United 
States  and  the  British  continental  ]»(»sse8sions  in  their  neighboriiood, 
I  naturally  regarded  it.  as  your  instructions  to  me  had  done,  in  con- 
nexion with  the  act  of  June  the  24tli,  1822.  This  brought  under  con- 
sideration our  claim  to  the  navigation  of  tlic  river  St.  Lawrence. 
Between  this  question,  and  the  questions  of  commercial  intercourse 
under  the  act  of  June,  1828,  the  British  Plenipotentiaries  were  con- 
stantly unwilling  to  acknowledge  any  connexion.  Nevertheless,  look- 
ing to  your  instructions,  and  as  well  to  the  reason  of  tlicm,  as  to  their 
authority,  I  treated  the  two  questions  as  belonging  to  one  and  the 
same  general  subject  They  asked  whetlier,  taking  tlic  two  acts  of 
Parliament  together,  the  United  States  did  not  already  enjoy  the  na- 
vigation of  this  river  ?  I  said  that  they  did :  by  the  act  of  June  the 
24th,  1822,  they  enjoyed  it  from  the  ocean  to  Quebec  ;  and  by  that  of 
August  the  5th,  1822,  from  any  part  of  the  territories  of  the  United 
States  to  Quebec.  But  from  the  fact  of  the  colonial  Governments,  in 
Canada,  being  invcstetl  w  ith  a  iliscretionary  power  to  withdraw  the 
latter  of  these  concessions,  !»y  excepting  any  of  the  Canadian  |K)rts 
from  those  to  which  our  vessels  were  made  admissible,  it  lollowed 
that  our  enjoyment  of  the  navigation  of  tliis  river  was  rendered  con- 
tingent upon  British  permission.  This  was  a  tenure  not  i-econcllablc 
in  the  opinion  of  the  Government  of  the  United  States,  v;itli  the  grow- 
ing and  iicrmanent  wants  of  tlieir  citizens  in  that  portion  of  the  Union 


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LDoc.  No.  48.] 


9 


crcnco 
,  If  ne- 
tlme  of 
By  thB 
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in  fact, 
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ly  of  the 
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having  im- 
thc  UmtoJ 
igliborhooil, 

;,,e,  in  coi»- 
undcrcou- 
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iiitcrcourw 
3  wcrecoii- 

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,,astotlieii- 

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enjoy  the  im- 

a,d  by  that  «.f 
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vcinmcntS  jn 

^viU»<^ra^v  the 
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c    it  lollowcd 

r'enacrcd  con- 
)t  i-ec«nciiaolc 

with  the  gro^- 
,„  of  the  Union 


or  with  the  rights  of  the  nation.  It  was  due  to  both  these  considers- 
tions  that  it  should  Ntand  u|M)n  a  oiflTcrent  tenurt?.  and  the  time  had 
arrived  wlicn  it  was  desirable  that  tlio  two  nations  should  come  to  an 
understanding  u|M)ri  a(|uestion  of  so  inucii  importance. 

••  The  British  IMeiil|i(>tentiaries  next  asked,  whether  any  question 
was  about  to  be  raised  on  ihe  riglit  of  Ui-eat  Britain  to  exclndct  alto> 
getlier,  vessels  of  the  Uniteil  States  from  trading  with  British  ]iort8 
situHtcd  upon  the  St.  Lawrence,  or  elsewhere,  in  Canada  f  I  replied 
that  1  was  not  prepareii  absolutely  to  deny  such  a  right  in  Great  Bri«. 
tain,  to  whatever  considerations  itsoxercisn  might  be  open.  I  rcniark- 
ed,  also,  that  it  seemed  ali-eudy  to  have  been  substantially  exercised 
by  this  act  of  the  5th  of  August,  1822  :  for,  by  its  provisions,  only 
certain  enumerated  articles  wer«  allowed  to  be  exported  from  the 
United  States  into  Canadian  ports,  and  duties  were  laid  upon  these 
articles,  which  might  be  said  to  amount  a  prohibition.  I  added,  that, 
although  the  foregoing  act  had  not  laid  any  duty  on  the  merchandise 
of  the  United  States  descending  the  St.  Lawrence  with  a  view  to  ex- 
portation by  sea,  yet  that  an  act  of  the  preceding  year  did,  viz.  upon 
th)'ir  timber  mid  lumber,  which  made  it  highly  exjiedient  that  the  re^ 
lative  rights  of  the  parties  to  the  use  of  tlie  waters  of  this  great  stream, 
should  be  asceilained.  1  here  went  into  A  review  of  the  footing'upon 
which  the  trade  betw(%n  the  United  StatcH  and  the  Canadas  stood,  un^ 
der  the  stipulations  of  the  treaty  of  1794.  The  memorial  from  the 
inhabitants  of  Franklin  County,  in  the  State  of  New  York,  and  the 
report  of  the  Committee  of  the  House  of  Representatives  upon  that 
document,  furnished  me  with  the  necessary  lights  for  executing  this 
duty,  as  well  as  for  pointing  out  the  injurious  and  burdensome  opttra- 
tion  of  tlie  art  of  the  5th  of  August,  1822.  The  latter  act  hud  super- 
seded all  the  former  conditions  of  this  intercourse.  With  these  con- 
ditions, the  citizens  of  the  United  States  had  been.  I  said,  content, 
and  it  was  believed  that  they  had  been  found,  on  experience,  satisfac- 
tory on  both  sides.  The  treaty  stipulations  of  1794,  were  among  the 
articles  of  that  instrument  declared,  when  it  wa«  made,  to  be  perma- 
nent ;  and  so  mutually  beneficial  had  ap|)eared  to  be  their  operation, 
that  both  parties  continued,  in  practice,  to  make  them  the  rule  of  their 
conduct  for  some  years  after  the  war  of  1812,  until,  by  the  acts  of 
Parliament,  just  recited.  Great  Britain  chose  to  consider  the  interven- 
tion of  that  war  as  putting  an  end  to  their  validity.  This  state  of 
things,  by  remitting  each  party  to  their  anterior  and  original  rights, 
rendered  it  manifestly  incumbent  upon  the  Government  of  the  United 
States  now  to  attempt  to  settle,  by  convention,  or  in  some  other  manner, 
with  Great  Britain,  the  true  nature  of  the  tenure  by  which  tliey  held 
the  navigation  of  this  stream.  Such  was  the  character  of  the  remarks 
by  which  1  illustrated  the  propriety  of  adding  to  tlie  two  articles 
which  I  had  offered  for  the  regulation  of  the  commercial  intercourse 
between  the  United  States  and  the  British  colonies,  whether  continen- 
tal or  insular,  a  third  article  relating  exclusively  to  the  navigation  of 
the  St.  Lawrence.  A  third  article  will  be  found,  accordingly,  in  this 
connexion,  as  part  of  our  projet,  already  referred  to,  as  annexed  to 
2 


'.li! 


I" 


iO 


[Doc.  No.  43.] 


the  protocol  of  rjit  tliiifl  conference.  Its  stipulations  were,  that  the 
navigation  of  the  St.  Lawrence  in  its  whole  length  and  breadth,  to  and 
from  the  sea,  should  be  at  all  times  equally  free  to  the  citizens  and 
subjects  of  both  countries,  and  that  the  vessels  belonging  to  either 
party  should  never  be  subject  to  any  molestation  whatever  by  the 
otlier,  or  to  the  payment  of  any  duty  for  this  right  of  navigation. 
After  this  une(]uivocal  provision,  it  concluded  with  a  clause  that,  re< 
garding  such  reasonable  and  moderate  tolls  as  either  side  might.claim 
and  appear  to  be  entitled  to,  the  contracting  parties  would  treat  at  a 
future  day,  in  order  that  the  principles  regulating  such  tolls  might  be 
adjusted  to  mutual  satisfaction. 

t*  I  deemed  it  most  advisable  to  ingraft  upon  the  article  this  princi- 
ple respecting  tolls,  alth<iugh  it  was  not  particularly  mentioned  In 
your  despatch.  In  pursuing  into  their  details  some  of  the  general  prin- 
ciples which  you  had  laid  down,  1  was  left  under  the  impression  that 
our  title  to  navigate  this  i-iver,  independently  of  the  consent  of  Great 
Britain,  could  be  made  out  with  more  complete  and  decisive  strength, 
under  the  qualified  admission  of  the  claim  to  toll.  The  writers  on 
pubiii;  ia«.  had  generally  so  treated  the  subject,  and,  in  some  of  the  mo- 
dern treaties,  of  high  authority  in  our  favor,  on  the  general  question, 
the  admission  was,  also,  to  be  seen.  I  refer  particularly  to  the  ftfth 
jtrticle  of  the  treaty  of  peace,  of  the  thirtieth  of  May,  1814,  between 
the  allied  Powers  and  France,  where,  after  providing  for  the  free  na- 
vigation of  the  Rhine  to  all  persons,  it  is  agraod  that  principles  should 
be  laid  down,  at  a  future  Congi'ess,  for  the  collection  of  the  duties  by 
the  States  on  its  banks,  in  the  manner  most  equal  and  favorable  to  the 
commerce  of  all  nations.  In  adverting  to  the  claim  of  toll,  as  a  ques- 
tion only  for  future  discussion,  and  one  that  might  bo  of  like  interest 
to  both  parties,  (the  British  navigation  of  this  river  being  obliged,  in 
some  parts,  to  pass  close  to  our  bank. )  and,  moreover,  whera  the  claim* 
if  advanced  on  either  side,  was  to  be  made  dependent,  on  sufficient  cause 
being  shown  for  it,  I  did  not  believe  that  I  was  losing  sight  of  any 
principle  of  value  to  the  United  States  in  this  controversy.  The 
clause,  I  hope,  will  be  found  to  have  been  t<io  guarded  in  its  terms  to 
be  open  to  such  a  risk. 

"There  was  another  point  on  which  I  felt  more  uncertainty.  The 
navigation  of  this  stream,  although  I  believed  it  could  be  demonstrated 
to  be  the  just  right  of  the  People  of  the  United  States,  could  not  draw 
after  it  all  its  benefits  to  them,  without  a  concurrent  right  of  stopping 
at  some  point,  or  port,  where  both  of  its  banks  fell  within  the  colonic 
territory  of  Great  Britain.  Upon  what  footing  was  I  to  treat  this 
latter  and  subordinate  question  ?  Your  instructions  had  not  dealt  with 
it,  and  I  felt  myself  at  a  loss.  It  could  sirtarcely  be  doubted  but  that, 
our  right  to  navigate  the  river  being  established.  Britain  would,  as 
matter  of  international  comity,  and  as  an  arrangement  advantageous 
also  to  herself,  allow  us  a  place  of  entry  for  our  vessels,  and  depo^^ite 
for  our  pipduce,  somewhere  on  its  shores.  She  has  so  largely,  of  late 
years,  been  extending  the  warehousing  system  to  all  other  nations,  for 
their  convenience  and  her  own,  that  it  might  well  be  presumed  she 


-43 


# 


[l)oc*Xo.43.] 


11 


were,  that  the 
breadth,  to  and 
le  citizens  and 
ging  to  either 
atever  by  the 
of  navigation. 
Jause  that,  re- 
de  might  claim 
rould  treat  at  a 
I  tolls  might  be 

cle  this  princi- 
t  mentioned  in 
i«  general  prin- 
impression  that 
msent  of  Great 
cisive  strength, 
Phe  writers  on 
Hirne  of  the  mo- 
neral  question, 
rly  to  the  fifth 
1814,  between 
for  the  free  na- 
'inciples  should 
if  the  duties  bj 
'avorable  to  the 
toll,  as  a  ques- 
of  like  interest 
•ng  obliged,  in 
rhei-e  the  claim, 
sufficient  cause 
sight  of  any 
roversy.  The 
in  its  terms  to 

ertainty.  The 
e  demonstrated 
could  not  draw 
;ht  of  stopping 
"al 


in  the  colonial 
to  treat  this 
I  not  dealt  with 
ubted  but  that, 
tain  would,  as 
t  advantageous 
s,  and  depoif)ite 
largely,  of  late 
ler  nations,  for 
presumed  she 


would  not  exclude  the  United  States  from  a  partiripation  in  it  at  Que- 
bec, or  elsewhere,  at  a  suitable  imrt  in  Canada.  Yet  I  felt  it  to  be  a 
point  of  some  delicacy,  and  therefore  thought  that  it  would  be  most 
judicious  to  leave  it  wholly  untouched  in  my  proposal.  Another  rea- 
son operated  with  me  for  Uiis  silence.  As  far  as  I  was  able  to  carry 
my  investigations  into  the  point,  1  found  much  ground  for  supposing 
that  the  right  to  the  navigation  of  a  river  under  the  strong  circum- 
stances which  marked  that  of  the  United  States  to  the  navigation  of 
the  St.  Lawrence,  would  involve,  as  an  incident,  the  right  of  innocent 
stoppage  somewhere  on  the  shores ;  an  incident  indispensable  to  the 
beneficial  enjoyment  of  the  riglit  itself.  By  the  seventh  article  of  the 
treaty  of  Paris,  of  1763,  the  fre**  navigation  of  the  Mississippi  was 
granted  to  Great  Britain,  but  without  any  clause  securing  to  British 
vessels  the  privilege  of  stopping  at  New  Orleans,  then  a  French  port, 
^  or  at  any  other  port  or  place  on  any  part  of  the  shores.  Yet  the  his- 
torical fact  appears  to  have  been,  that  Britain  did  use  New  Orleans 
as  a  place  for  her  vessels'  to  stop  at.  and  this  without  any  subsequent 
arrangement  with  France  ujion  the  subject.  The  case  becomes  still 
stronger,  if,  afterwards,  when  New  Orleans  fell  into  the  hands  of 
Spain,  the  British  continued  to  use  it  for  the  same  purpose,  contrary, 
at  first,  to  the  remonstrances  of  the  Spanish  Governor  of  that  town, 
which  is  also  believed  to  have  been  the  fact.  I  abstained,  however, 
from  asserting,  in  this  negotiation,  the  subordinate  right  in  question.  ' 

**  On  the  prihcipal  question  of  our  equal  right  with  the  British  to  the 
entire  an^  unobstructed  navigation  of  this  river,  I  dwelt  with  all  the 
emphasis  demanded  by  its  magnitude.  I  spoke  of  it  as  a  question  in- 
timately connected  with  the  present  interests  of  the  United  State.s,  and 
which  assumed  an  aspect  yet  moi-e  commanding  in  its  bearing  upon 
their  future  population  and  destinies.  Already  the  immense  region 
which  bordered  U|)on  the  lakes  and  northern  rivers  of  the  United  States, 
were  rapidly  filling  up  with  inhabitants,  and  soon  the  dense  millions 
who  would  cover  them,  would  point  to  the  paramount  and  irresistible 
necessity  for  the  use  of  this  great  stream,  as  their  only  natural  high- 
way to  the  ocean.  Nor  \va.s  the  question  one  of  magnitude  to  tliis  part 
of  the  Union  alone.  The  whole  nation  felt  their  stake  in  it;  tlic  Mid- 
dle and  the  North  more  immediately  ;  but  all  the  rest  by  the  multi- 
plied ties  and  connexions  which  bound  up  their  wants,  their  interests, 
and  their  sympathies,  with  the  Middle  and  the  North.  It  was  under 
such  a  view  of  the  immediate  and  prospective  value  of  this  navigation 
to  us,  that  I  first  presented  it  to  the  notice  of  the  British  Plenipoten- 
tiaries as  a  question  of  right.  I  told  them  they  must  understand  this 
to  be  the  sense  in  which  I  had  drawn  up  the  article  upon  the  subject, 
and  that  it  was  the  sense  in  which  I  felt  myself  bound,  as  the  Plenipo- 
tentiary of  the  United  States,  to  urge  its  adoption. 

**  I  approach  an  interesting  part  of  this  negotiation  \  hen  I  come  to 
make  known  in  what  manner  the  British  Plenipotentiaries  received 
this  disclosure.  They  said  that,  on  principles  of  accommodation,  they 
were  willing  to  treat  of  this  claim  with  the  United  States  in  a  spirit 
of  entire  amity ;  that  is,  as  they  explained.,  to  treat  of  it  as  a  concession 


\\ 


.  y 


.J. 


■A 

t   ' 


il 


12 


[Doc.  No.  48.] 


on  thr  poi't  of  Great  Britain,  for  whicli  the  United  States  must  be  prc« 
pared  to  ofler  a  full  equivalent.  This  was  the  only  light  in  which  thejr 
could  entertain  the  question.  As  to  the  claim  of  right,  they  hoped 
that  it  would  not  even  be  advanced ;  persisted  in,  they  were  willing  to 
persuade  themselves  it  would  never  be.  It  was  equally  novel  and  ex- 
traordinary. They  could  not  repress  their  strong  feelings  of  surprise 
at  its  bare  intimation.  Great  Britain  possessed  the  absolute  sove- 
reignty over  this  river,  in  all,  parts  where  both  its  banks  were  of  her 
territorial  dominion*  Her  riglit.  hence,  to  exclude  a  foreign  nation 
from  navigating  it,  was  not  to  be  doubted,  scarcely  to  be  discussed. 
This  was  the  manner  in  which  it  was  at  first  received.  They  oppos- 
ed to  the  claim  art  immediate,  positive,  unqualified  resistance. 

«< !  said  that  our  claim  was  neither  novel  nor  extraordinary.  It 
was  one  tliat  had  been  well  considered  by  my  Go^/ernment,  and  was 
believed  to  be  maintainable  on  the  soundest  principles  of  public  law. 
The  question  had  been  familiar  to  the  past  discussions  ot  the  United 
States,  as  their  State  papers,  wliich  were  before  the  world,  would 
show.  It  had  been  asserted,  and  successfully  asserted,  in  relation  to 
another  great  river  of  the  American  continent,  flow  ing  to  the  South, 
the  Mississippi,  at  a  time  when  both  of  its  lower  banks  were  under 
the  dominion  of  a  foreign  Power.  The  essential  principles  that  had 
governed  the  one  case,  were  now  applicable  to  the  other. 

'*  My  reply  was  not  satisfactory  to  the  British  IMoni|)otentiaries. 
They  combatted  tlie  claim  with  increased  earnestness,  declaring  that 
it  was  altogether  untenable,  and  of  a  nature  to  be  totally  and  une- 
quivocally rejected.  Instead  of  liaving  the  sanction  of  public  law,  the 
law  and  the  practice  of  nations  equally  disclaimed  it.  Could  I  shew 
wliere  was  to  be  found,  in  either,  the  least  warrant  for  its  assertion  ? 
Was  it  not  a  claim  plainly  inconsistent  with  the  paramount  authority 
and  exclusive  possession  of  Great  Britain  ?  Could  she  for  one  mo« 
ment  listen  to  it  ? 

**  I  remarked,  that  the  claim  had  been  put  forward  by  the  United 
States  because  of  the  great  national  interests  involved  in  it ;  yet,  tliat 
this  consideration,  high  as  it  was,  would  never  be  looked  at  but  in 
connexion  with  the  just  rights  of  Great  Britain.  For  this  course  of 
proceeding,  both  the  principles  and  practice  of  my  Government  might 
well  be  taken  as  tlic  guarantee.  The  claim  wart,  therefore,  far  from 
being  put  forward  in  any  unfriendly  spirit,  and  would  bo  subject  to  a 
frank  and  full  interchange  of  sentiments  between  the  two  Govern- 
ments. I  was  obviously  bound,  I  admitted,  to  make  known,  on  be- 
half of  mine,  the  grounds  on  which  the  claim  was  advanced — a  duty 
which  I  would  not  fail  to  perform.  I  stated  that  wc  considered  our 
right  to  the  navigation  of  this  river,  as  strictly  a  natural  right.  This 
was  the  firm  foundation  on  which  it  would  be  placed.  This  was  the 
light  in  which  it  was  defensible  on  the  highest  authorities,  no  less  than 
on  the  soundest  principles.  If,  indeed,  it  had  ever  heretofore  been 
supposed  that  the  |x>ssession  of  both  the  shores  of  a  river  below,  had 
conferred  the  rigiit  of  interdicting  the  navigation  of  it  to  the  people 
of  other  nations  inhabiting  its  upper  banks,  the  examination  of  such  a> 


land  ti 
Istipoli 
lother 
Iple  dv 
Itions  I 
{often  « 
iright  < 
{both  t 
iThpre 
^^of  the 
yithe  cai 
.jdoctrii 
t^*naviga 
Great 
iside,  t 
"I 
which 
to  be  n 
agreei 

Srotoc 

^^   ''^ 
^  variou 

comni 

pie  of 

subjec 

eacli  ] 

to  the 


TDoc.  No.  48.] 


13 


fites  must  be  prc- 
;ht  in  which  thojr 
•ight.  they  hope4 
y  were  willing  to 
lly  novel  and  ex- 
lings  of  Rurprise 
e  absolute  Hove- 
Rnk8  were  of  her 
a  foreign  nation 
to  be  discusKcd. 
1.  They  oppos- 
^istance. 
traonlinary.  It 
nment,  and  was 
4  of  public  law. 
IS  of  the  United 
le  world,  would 
d,  in  relation  to 
Mg  to  the  South* 
nks  were  under 
ncijiles  that  had 
er. 

lcni|)otentiaries» 

declaring  that 

totally  and  une- 

public  law,  the 

Could  I  shew 

r  its  assertion  ? 

nount  authority 

le  for  one  nio> 

by  the  United 
in  it ;  yet,  that 
lokcd  at  but  in 
r  this  course  of 
prnment  might 
sfore,  far  from 
>c  subject  to  a 

two  Goveni- 
mown,  on  be- 

nced — a  duty 
;onsidered  our 
il  right.  This 

This  was  the 
no  less  than 

iretofore  been 
2r  below,  had 

to  the  people 
tion  of  such  a 


principle  would  at  once  disclose  the  objections  to  it.    The  exclusive 
right  of  jurisdiction  over  a  river  could  only  originate  in  the  social 
Dinpact,  and  be  claimed  as  a  right  of  sovereignty    The  rigiit  of  navi- 
gating the  river  was  a  right  of  nature,  preceding  it  in  point  of  time, 
ind  which  the  mere  sovereign  right  of  one  nation  could  not  anniliilate 
belonging  to  the  people  of  another.    It  was  a  right  essential  to  the 
condition  and  wants  of  human  society,  and  conformable  to  the  voice 
if  mankind,  in  all  ages  and  countries.     The  principle  on  which  it 
(rested,  challenged  such  universal  assent,  that,  wherever  it  had   not 
^been  allowed,  it  might  be  imputed  to  the  triumph  of  power  or  injus- 
tice over  right.     Its  i-ecovery  and  exercise  had  still  been  objects  pre- 
^'cious  among  nations,  and  it  was  happily  acquiring  fresh  sanction 
from  the  highest  examples  of  mfidern  times.     The  parties  to  the  Eu- 
ropean Alliance  had,  in  the  treaties  of  Vienna,  de(;lared  tliat  the  navi- 
igation  of  the  Rhine,  the  Necker,  the  Maync.  tlie  Moselle,  the  Maese, 
and  the  Scheldt,  should  be  free  to  all  nations.     The  object  of  these 
.stipulations  was  as  evident  as  praiseworthy.     It  could  have  been  no 
lotlier  than  to  render  the  navigation  of  those  rivers  free  to  all  the  pco- 
Iple  dwelling  upon  their  banks  ;  thus  abolishing  those  unjust  restric- 
Itions  by  which  the  people  of  the  interior  of  Germany  had  been  too 
[often  deprived  of  their  natural  outlet  to  the  sea,  by  an  al»use  of  that 
|right  of  sovereignty,  which  claimed'for  a  State,  happening  to  possess 
Itoth  the  shores  of  a  river  at  its  mouth,  the  exclufdve  property  over  it. 
^riiere  was  no  principal  of  notional  law  upon  which  the  stipulations 
ftf  the  above  treaties  could  be  founded,  which  did  nut  equally  apply  to 
Uie  case  of  the  St.  Lawrence.     It  was  thus  that  I  opened  our  general 
fdoctrine.     It  was  from  such  principles  that  I  deduced  our  right  to 
navigate  this  river,  independent  of  the  mere  favor  or  concession  of 
Great  Britain,  and,  consequently,  independent  of  any  claim,  on  her 
side,  to  an  equivalent. 

<*  I  abstain  from  any  further  recapitulation  to  you  of  the  principles 
which  I  invoked,  orof  the  authorities  to  which  I  referred,  for  a  reason 
to  be  now  mentioned.  It  will  be  seen,  by  the  first  protocol,  that  our 
agreement  had  been  to  carry  on  the  negotiation  by  conference  and 
protocol.  This,  the  more  usual  mode  at  all  times,  was  conceived  to 
be  peculiarly  appropriate  where  the  subjects  to  be  handled  were  so 
various,  and  their  details,  in  some  instances,  so  extensive.  Ft  was  re- 
commended, also,  and  this  was  of  higher  sway  with  me,  by  the  exam- 
ple of  the  negotiation  of  1818.  in  the  course  of  which  some  of  the  same 
subjects  had  been  discussed  with  this  Government.  Nevertheless, 
cacli  party  had  reserved,  under  this  agreement,  the  right  of  annexing 
to  the  protocol  any  written  statement  that  might  be  considered  neces- 
sary, as  matter  either  of  record,  or  of  explanation.  In  your  instruc- 
tions to  mc  rcsi)ecting  this  claim  to  the  navigation  of  the  St.  Law- 
rence, a  question  wholly  now  as  between  the  two  nations,  you  had  ad- 
verted to  my  presenting  it  in  writing,  if  necessary,  and  I  determined, 
under  all  the  circumstances,  that  I  should  not  properly  come  up  to 
my  duty,  unless  by  adopting  this  mode.  The  question  was  not  only 
now,  but  of  the  greatest  moment.    I  saw,  also,  from  the  beginning. 


I'l 


ill 


[ 


11 


( 


I 


14 


[Doc.  No.  48.] 


that  it  would  encounter  the  most  decided  opposition  from  Great  Bri- 
tain.   In  proportion  as  her  Plenipotentiaries  became  explicit  and 
peremptory  in  denying  it,  did  it  occur  to  me  that  it  would  be  proper, 
on  my  part,  to  be  unequivocal  in  its  assertion.    This  could  be  best  | 
done  upon  pafier.     This  would  carry  the  claim  distinctly  to  the  ar- 
chives of  thiH  Government,  rather  than  truat  it  to  foundations  more 
uncertain  and  fugitive.  It  would  explain,  as  well  as  record,  the  sense 
in  which  it  was  inserted  on  the  protocol.    Another  motive  with  me 
for  this  course,  and  scarcely  a  secondary  one,  was,  that  it  would  serve 
to  draw  from  Great  Britain,  in  the  same  form,  a  precise  and  full 
avowal  of  the  grounds  on  which  she  designed  to  oppose  the  claimt 
On  a  question  so  large,  and  which,  from  all  that  I  perceived  to  mark 
its  first  opening  between  the  two  Governments,  could  hardly  fail  to 
conic  under  discussion  again  hereafter,  it  appeared  to  me  that  it  would 
be  iiiore  acceptable  to  my  Government  to  be  in  possession  of  a  written 
document,  which  should  embody  the  opinions  of  this  Government, 
than  to  take  the  report  of  them  from  me,  under  any,  form  less  exact  or 
authentic. 

"1,  accordingly,  drew  up  a  paper  on  the  subject,  which,  under  the 
right  reserved,  1  annexed  (marked  B)  to  the  protocol  of  the  eighteenth 
cunferrnce,  and  so  it  stands  amongst  the  papers  of  the  negotiation. 
Tlie  British  Plenipotentiaries  continued  to  urge  their  animated  pro* 
tests  against  this  proceeding  on  my  part ;  not  that  they  could  divest 
me  of  my  privilege  of  recording  my  sentiments  in  the  shape  of  this 
written  statement,  but  that  they  earnestly  pressed  thepropnety  of  my 
abandoning,  altogether,  any  claim  to  the  navigation  of  this  river,  as 
a  claim  of  ligh^  which  shut  them  out  from  treating  of  it  upon 
other  bases.  But,  having  taken  my  determination,  under  other  esti- 
mates of  my  duty,  I  did  not  depart  from  it. 

«  The  paper  which  I  drew  up,  aimed  at  presenting  a  broad,  but  in- 
telligible, outline  of  the  principal  reasons  in  support  of  our  claim. 
These  were  such  as  you  had  set  before  me,  and  as  I  judged  to  be  im- 
mediately deducible  from  them.  Under  the  latter,  1  included  the  ar- 
gument on  the  Mississippi  question,  used  by  an  illustrious  individual, 
then  the  organ  of  our  Government  in  its  intercourse  with  foreign 
States.  I  considered  this  argnment  as  virtually  comprehended  in 
your  instructions  by  the  reference  which  they  contained* to  it ;  the 
questions  in  botli  cases,  so  far  as  each  drew  support  from  the  deep 
foundations  of  tiie  law  of  nature,  being  tlie  same.  Of  this  luminous 
State  paper  1  followed  the  track,  adopting  its  own  language,  whenever 
this  could  be  done,  as  the  safest,  the  most  approved,  the  most  national. 
The  only  view  of  the  subject  not  elicited  on  that  occasion,  which  I 
ventured  to  take  up,  was  one  pointed  out  by  the  locality  of  the  St. 
Lawrence.    I  will  briefly  explain  it. 

•<  The  exclusive  right  (lOMscHsed  by  Gi'eat  Britain  over  both  banks  of 
this  river,  was  won  for  her  by  the  co-operation  of  the  people  who  now 
form  the  United  States.     Their  exertions,  their  treasure,  their  blood, 
were  profusely  embarked  in  every  campaign  of  the  old  French  war. 
It  was  under  this  name  that  the  recollection  of  tit^at  w^r  stijl  livf  d  in 


5 


■■♦-^taTr,  ■,.,.»i^„ -*i«i/fi 


from  Great  Bri- 
me  explicit  and 
ivould  be  proper, 
lis  could  be  best, 
inctl^  to  the  ar> 
Dundations  more 
ecord,  the  sense 
motive  with  me 
it  it  would  serve 
precise  and  full 
ppose  the  claim, 
rceived  to  mark 
d  liardly  fail  to 
me  that  it  would 
ion  of  a  written 
s  Government, 
rm  less  exact  or 

irhich,  under  the 
f  the  eighteenth 
the  negotiation. 
*  animated  pro> 
ley  could  divest 
le  shape  of  this 
propriety  of  my 
'  this  river»  as 
ig  of  it  upon 
ider  other  esti. 

broad,  but  in- 
of  our  claim, 
dged  to  be  ini- 
icluded  the  ar- 
ms individual, 
with  foreign 
iprchended  in 
ned*to  it ;  tha 
from  the  deep 
(his  luminous 
ige,  whenever 
Dost  national, 
lion,  which  I 
y  of  the  St. 

both  banks  of 

aple  who  now 

^tlieir  blood, 

rench  war. 

still  lived  in 


[Doc.  No.  48.] 


15 


I 


le  United  States ;  a  war  which,  but  for  the  aid  of  New  England, 
[ew  Yoik,  and  Pennsylvania,  if  of  no  more  of  the  States,  would  pro- 
bably nut  have  terminated,  when  it  did,  in  the  conquest  of  Canada 
im  France.    If  these  States  were,  at  that  epoch,  a  part  of  the  colo- 
lial  empire  of  Great  Brit^'n,  it  was,  nevertheless,  impossible  to  ob- 
literate the  recollection  of  historical  facts,  or  exclude  the  inferences 
that  would  attach  to  them.    The  predecessors  of  the  present  inhabit- 
in  ts  of  those  States  had  borne  a  constant  and  heavy  burdeh  in  that 
'ar,  and  had  acquired,  simultaneously  with  the  then  paitrnt  State, 
the  right  of  descending  this  stream,  on  the  hypothesis,  assumed  fur  the 
loment,  of  their  not  having  possessed  it  before ;  a  right  of  peculiar 
IIMmportaDce  to  (hem,  from  their  local  position  and  necessities.    It  was 
j^plo  this  effect  that  1  noticed  a  title,  by  joint  acquisition,  as,  also,  suscep- 
,',|tible  of  being  adduced  for  the  United  States,  to  the  navigation  of  this 
river.  There  was,  at  least,  a  strong  natural  equity  in  it,  which  would 
Icome  home  to  the  people  of  the  United  States,  impressing  them  with 
ew  convictions  of  ^hc  hai'dship  of  now  refusing  them  the  use  of  this 
tream,  as  an  innocent  pathway  to  the  ocean.    But,  as  I  had  not 
our  elucidations  of  this  view  of  the  subject,  I  was  careful  to  use  it 
nly  in  subordination  to  the  argument  of  natural  right.     The  latter  I 
ireated  as  sufficient,  in  itself,  to  make  out  our  title,  and  repudiated 
the  necessity  of  resorting  to  any  other.    1  will  own,  however,  that 
y  disposition  to  confide  in  the  argument  founded  upon  joint  arquisi- 
ion,  was  increased  by  the  analogy  which  it  appeared  to  me  to  bear  to 
the  course  of  reasoning  pursued  with  Great  Britain,^by  my  pi-edcces- 
sor  in  this  nussiou,  in  relation  to  the  fisheries.     If  oiir  title  to  a  full 
participation  with  Britain  in  the  fisheries,  though  they  were  within 
the  acknowledged  limits  and  jurisdiction  of  the  coasts  of  British  Ame- 
rica, was  strengthened  by  the  fact  of  the  early  inhabitants  of  the 
United  States  having  been  among  the  foremost  to  explore  and  use  the 
fishing  grounds,  why  was  the  analogous  fact  of  their  having  assisted 
to  expel  the  French  from  the  lower  shores  of  the  St.  Lawreitce  to  be 
of  no  avail  ?  I  had  believed  in  the  application  and  force  of  the  argu-  ' 
ment  in  the  one  instance,  and  could  not  deny  it  all  the  consideration 
that  it  merited  in  the  other. 

**  The  necessity  of  my  recounting  to  you  the  British  argument  in'; 
answer  to  our  claim,  is  superseded  by  my  being  able  to  transmit  it"^ 
to  you  in  their  own  words  upon  paper.    It  is  sufficiently  elaborate^' 
and  was  drawn  up  with  great  deliberation.  It  is  annexed  (marked  N.) 
I  to  the  protocol  of  the  twenty-fourth  conference.  The  intention  avowed 
by  the  British  Plenipotentiaries,  at  the  nineteenth  conference,  of  ob- 
taining for  its  doctrines,  before  it  was  delivered  to  me,  the  full.sanc- 
tioii  of  their  highest  professional  authorities  on  matters  relating  to 
the  law  of  nations,  may  serve  to  show  the  *  gravity  and  importance,' 
to  repeat  their  own  expression,  which  the  question  had  assumed  in 
their  eyes.    I  have,  otherwise,  reasons  for  knowing  that  their  argu- 
ment was  prepared  under  the  advice  and  assistance  of  five  of  the  most 
eminent  publicists  of  England.    With  all  the  respect  due  to  a  paper 
matured  under  such  auspices,  I  am  not  able  to  look  upon  it  as  impugn- 


L*!    "■ 


'  '\        m\ 


16 


[Uoc.  No.  48.] 


i  i 


:i    I 


H 


ingthe  argument  which,  under  your  direction.,  and  following  the 
course  o(  otiiei-s  bei'ore  me,  I  had  becumv  the  organ  of  making  known 
on  behalf  of  the  United  States. 

«« In  Ncveral  instances  the  British  paper  has  appealed  to  the  same 
authorities  that  are  to  be  found  in  mine.  It  is  in  the  application  of 
them  only,  that  the  difTcrenco  is  seen.  In  other  parts,  the  difference  is 
made  to  turn  u|H)n  words  rather  than  substance.  But  an  error  that 
runs  throughout  nearly  the  whole  of  their  paper,  consists  in  attribut- 
ing to  mine  a  meaning  which  does  not  belong  to  it  This  applies  espe- 
cially to  the  particular  description  of  right  which  we  claim ;  how  far 
it  is  one  of  mere  innocent  utility  ;  how  far  a  right  necessary  to  us  and 
not  injurions  to  Britain  ;  how  far  a  right  which,  if  not  falling  under 
the  terliniral  designation  of  absolute,  is,  nevertheless,  one  that  cannot 
be  witlilielil.  Tliesc  are  all  qualifications  which  were  not  overlooked 
in  my  exposition  of  the  doctrine ;  a  light*  however,  in  which  the  Brit- 
ish pa])cr  does  not  appear  to  have  regarded  it.  But  as  each  document 
is  now  of  record,  and  will  be  judged  by  the  terms  which  it  has  used* 
and  the  construction  that  justly  attaches  to  them,  I  will  not  enlarge 
upon  this  head. 

« The  British  paper  deals  with  our  claim  as  standing  upon  equal 
fttoting  with  a  claim  to  the  use  of  the  roads,  canals,  or  other  artificial 
ways,  of  a  country ;  forgetting  that  the  rase  in  dispute  is  that  of  a  natu- 
ral stream,  forming  the  only  natural  outlet  to  the  ocean — tlie  stream 
itself  being  common,  by  nature,  f  o  both  countries.     Commenting  upon 
the  acquired  title  of  the  United  States,  which  I  had  put  forward  un- 
der the  i-cstrittion  described,  their  pnper  argues,  that  the  same  ground 
would  justify  a  correlative  claim,  by  Great  Britain,  to  the  use  of  the 
navigable  rivers,  and  all  other  ])uhlir  posnessions,  of  the  United  States, 
which  existed  when  boih  countries  were  united  under  a  cominon  Gov- 
ernment !     By  a  like  misapplication  of  obvious  principles,  it  argues 
that  our  claim  would  silso  justify   Britain  in  asking  a  passage  down 
the  Mississippi,  or  the  Hudson,  though  neither  the  one  nor  the  other 
touch  any  (tortion  of  the  British  lerritories ;  or  that  it  might  equally 
justify  a  claim, on  her  side,  to  ascend,  with  British  vessels,  the  principal 
rivers  of  the  United  States,  as  far  as  their  draft  of  water  would  admit, 
instead  of  depositing  their  cargoes  at   the  appointed  ports  of  entry 
from  the  sea  !     On  doctrines  such  as  these,  I  could  only  say  to  the 
British  Plenipotentiaries,  that  I  was  wholly  unable  to  perceive  their 
application  to  the  argument,  unless  the  United  States  had  been  advanc- 
ing a  claim  to  the  navigation  of  the  river  Thames,  in  England. 
.  *' Their  argument  also  assumes  that  the  treaty  stipulations  of  1794, 
exclude  all  idea  of  a  right,  on  our  side,  to  the  navigation  of  this  river, 
forgetting,  that  if,  under  those  stipulations,  vessels  of  the   United 
States  were  interdicted  the  navigation  of  British  rivers  between 
their  mouths  and  the  highest  poil  of  entry  from  the  sea ;  so,  on  the 
other  iiand,  British  vessels  were  interdicted  tlic  navigation  of  the  ri- 
vers of  the  United  States,  beyond  the  higlicst  ports  of  entry  from  the 
sea;  and,  also,  that  the  whole  terms  of  the  international  intercourse, 
in  that  quarter,  were,  by  this  compact,  such  as  at  the  time  satisfied  both 


■  b  \ 


[Doc.  Uto.  4t:] 


«l 


piHlM^  withinit  impairing  tlie  rights  wliich  either  pmwiaed  indtpoi- 
dent  of  the  compact,  and  which  only  remained  in  suapemte  daring  ita 
existence.  This  observation  suggests  another  to  which  their  argument 
is  open;  in  parts  which  they  press  as  of  decisive  weight.  It  allegea 
that  becaune,  by  the  general  treaty'  of  Yiona,  the  powers  wboae 
States  were  crossed  by  the  same  navigable  rivers,  engaged  to  ngai-> 
late,  by  common  consent,  all  that  rc^pwdcd  their  navigation ;  because 
Russia  held  by  treaty  the  navigation  of  the  Black  sea;  and  hrcause  of 
the  miiny  instances,  capable  of  bdng  cited,  were  the  navigation  of 
rivers  or  straits  that  separated,  or  flowed  through  the  territories 
of  diflbrent  countries,  was  expressly  provided  forliy  treaty,;  that,  be- 
cause of  these  facts,  the  inference  Was  irresistible,  tiiat  tiie  right  of 
navigation,  under  such  circumstances,  depended  upon  eommon  eotuenti 
and  could  only  be  claimed  iw  treaty.  Here,  too,  it  seems  to  have  heed 
forgotten,  that  it  is  allowable  in  treaties,  as  well  as  oftentimes  expe* 
d|«nt,  for  greater  safety  and  precision,  to  enter  into  stipulations  for  the 
e^foyment  or  regulation  of  pre-existing  rights ;  that  treaties  are,  in  fac^ 
expressly  declared,  by  the  writers  upon  the  laws  of  nations,  to  be  (^ 
two  general  kinds :  those  which  turn  on  things  to  which  we  are  al- 
ready bound  by  the  law  of  nature,  and  those  by  which  we  engage  to 
do  something  more.  In  their  quotation,  also,  of  the  note  frum  the 
first  volume  of  the  Laws  of  Congress,  containing  an  intimation  ttiat 
the  United  Statrs  could  not  he  expected  to  yield  the  navigation  of  the 
Mississippi,  a'ithout  an  equivideht.  they  seem  wholly  to  have  over- 
looked, besides  the  otl|:r  points  of  that  note,  that  it  was  made  at  a  pe- 
riod when  it  was  well  known  that  no  part  of  ihftt  river  touched  the 
territories  of  a  foreign  Power ;  and  when,  therefore,  its  exclusive 
navigation  belonged  to  the  United  States,  as  much  so  as  the  Dela- 
ware, or  the  Fuiomac.  '^ 

«Tlie  foregfring  are  some  of  the  remarks  upon  the  British  paper, 
which  I  submitt^  at  the  conference,  after  receiving  it.  The  first 
impressions  that  I  had  of  my  duty  in  regard  to  it,  and,  conseqoendy, 
my  first  determination  was  to  reply  to  it  at  large,  in  writing,  an- 
nexing my  rejj^ly  to  the  protocol;  But,  on  more  reflection,  I  deem  it 
rniMt proper  to  abstain,  at  present,. from  this  step.  As  a  view  of  the 
whole  subject,  given  out  under  the  immediate  eye  and  antiiwity  of 
this  Govemmmt,  and  with  extraordinary  care,  it  appeared,  to  dm 
that  the  British  paper  ought  to  come  under  the  knowledge  of  my  own 
Ckivernm^nty'before  receiving  a  formal  or  full  answer  from  any  source 
less  high.  If  it  be  thought  to  require  such  an  answer,  a  short  delay 
could  be  nothing  to  the  advantage  of  its  being  aflforded.  either  through 
me,  or  my  successor  in  this  missioh,  under  the  light  of  furtlitirjnstnic- 
iions  from  home.  The  jmuse  seemed  the  more  due,  not  otil;  from 
the  newness  of  the  discussion  between  the  two  Governments,  but  be- 
cause I  may  not,  at^  this  moment,  be  sufliciently  apprised  of  all  the 
modifications  bitder  which  mine  may  desire  it  to  he  presented  in  a 
seicoMd  and  emre  fiill  argiiment.  I  b«q[»  that  this  fbrbearauice,  on  mf 
patt«  lNi|U%e  approved^  as  havii^itieeni  under  the  exigency,  tl^maiit 
circHiiiq^  and  b«ctoniilig  course.    I  gave  the  British  PleniptftMtta^ 


'  'I 


1  ,i(i 


J 


(ii 


li 


-  *t- 


■( 


:,    f 


NV-    V 


\' 


d. 


i 

t 


18 


LD6C.  No.  43.  J 


ries  to  understand,  that  the  written  argument,'  on  the  side  of  Hk  j 
United  States,  must  not  be  considered  as  closed,  but,  on  the  contra* 
ry,  onljr  as  opened." 


Extract  of  a  Utter  from  Mr.  Clay  to  Mr.  Gallatiitf  (Jfb.  1.) 

DSPARTMENrr  OF  Statb, 

WashUtgtont  \9th  June,  1826. 

«  3.    Tlie  navigation  of  the  St.  Lawrence  fi^ni  tlie  Territories  of 
the  United  States  to  the  sea. 

<•  Tiie  Government  of  the  United  States  have  seen,  with  very  great 
surprise  and  regret,  the  manner  in  which  the  assertion  of  this  riglit 
of  navigation,  througli  Mr.  Rush,  during  tiie  fuinner  negotiation,  was 
met  and  resisted  by  the  British  Pletiipotentiariefi.  The  President  has 
i'ea|)ectfully  and  deliberately  examined  and  considered  the  British 
pa|icr  which  was  delivered  in  by  them,  and  which  is  annexed  to  tlie 
protocol  of  the  ii!4th  conference,  and  ho  has  been  altogether  unable  t<» 
discern,  in  its  reason  or  its  authorities,  any  thing  to  impeach  the 
riglit  of  the  United  States,  or  to  justify  the  confidence  with  which 
the  exriusive  pretensions  of  Great  Gritain  arc  brought  forward  and 
maintained.  Wliat  is  the  right  claimed  by  tiie  United  States  ?  The 
North  American  lakes  are  among  the  largeslPinland  seas  known  on 
the  globe.  Tiicy  extend  from  about  the  41st  to  the  49th  degree  of 
north  latitude,  stretch  over  sixteen  degrees  of  longitude,  and  thus 
present  a  surface,  altogetlier,  of  upwards  of  eigtity-tliree  thousand 
square  miles.  Eight  States  of  this  Union,  (three  of  them  among  the 
largest  in  it)  and  one  Territory,  border  on  them.  A  population  al- 
ready exceeding  two  millions,  and  augmenting  beyond  all  exam|de,  is 
dii-ectly  and  deeply  interested  in  thfir  navigation.  They  are  entirely 
enclosed  within  tiie  Territories  of  the  United  States  and  Great  Bri- 
tain, and  tlie  right  to  their  navigation,  common  to  botii,  is  guarantied 
by  the  faith  of  treaties,  and  rests  upon  the  still  higher  authnrity  of 
the  law  of  nature.  Thesis  great  lakes  are  united  by  but  one  natural 
outlet  to  tlie  ocean,  the  navigation  of '  which  is  common  to  aN  man- 
kind. That  outlet,  along  a  considerable  part  of  its  course,  forms  a 
ctiinmon  boundary  between  the  territories  of  the  United  States  and 
Great  Britain,  and  to  that  extent  the  right  of  navigating  it  is  enjoyed 
by  butlK  Tlie  United  States  contend  that  they  are  invested  with  a 
right  to  pass  fnmi  those  lakes,  the  iticontested  privilege  of  naviratii)g 
which  they  exercise,  through  that  natural  outlet,  to  the  ocean — 
the  right  of  navigating  which,  by  all  nations,  ninie  presumes  tn 
question.  The  right  assei'ted,  in  other  words,  is,  that  their  vessels 
siiall  be  allow^,  without  molestation,  to  pursue  their  trackless  way 
on  the  bosom  of  those  vast  waters,  gathered  together,  in  ho  inconsi- 
^rahle  degree,  in  their  own  territory,  through  that  great  cbimnel  of 
the  St.  Lawrence,  which  nature  itself  ba»  beneficently  supplied,  to 


\       i 


■■n 


<^j 


■^-.i^v. 


[11^.  ljc>;48.] 


t» 


onthesideof  tiit 
on  the  contra. 


tin,  (Mb.  I.) 

thJune,  1826. 
lie  Territories  of  i 

with  very  great 

ion  of  tfiis  right 
negotiation,  was 
he  President  has 
sred  tlje  British 

annexed  to  t)i» 
gether  unable  ti* 

to  impeach  the 
"ce  with  which 
;ht  forward  and 
i  States  ?   The 

seas  Itnown  on 
>  49th  degree  of 
t'lile,  and  thus 
■three  thousand 
them  among  the 
^  Papulation  al- 
all  example,  is 
lej  ai-e  entirely 
and  Great  Bri- 
» i"*  guarantied 
er  authority  of 
•ut  one  natural 
on  to  aN  nian- 
nurse,  forms  a 
ted  States  and 
5  it  h  enjoyed 
•vested  with  a 
of  naviratirjig 

the  ocean — 

presumes  to 
t  their  vessels 
:rackless  way 
in  ho  inconsi- 
at  cbatinel  of 
'  SBppJi«iiy  to 


:iie  ocean,  in  which  they  are  finally  deposited.    The;  ask  that  thff 
interests  of  the  greater  population,  and  the  more  extensive  and  fertile 
Icountry  above,  HJiall  not  be  sacrificed,  in  an  arbitrary  exertion  of 

Enwer,  to  the  jealousy  and  rivalry  of  a  smaller  population,  inha- 
iting  a  more  limited  and  less  productive  country  below.   The  United 
[states  do  not  claim  a  right  of  entry  into  British  posts,  situated  on 
Itlie  St.  Lawrence,  against  British  will,  and  to  force  their  productions, 
[into  the  consumption  of  British  subjects.    They  claim  only  the  right 
of  passing  those  ports,  and  transiiorting  their  productions  to  foreign 
markets,  or  to  their  own,  open  and  willing  to  receive  them ;  and,  as 
incident  and  necessary  to  the  enjoyment  of  that  right,  they  claim  the 
iirtvileges  of  stoppage  and. transhipment,  at  such  places  within  the 
British  jurisdiction,  and  under  such  reasonable  and  equitable  regula- 
tions, as  may  be  prescribed  or  agi*eed  upon. 

**  Such  is  the  right,  the  assertion  of  which  shocked  the  sensibility  of 
the  British  Plepipotentiaries.  The  impartial  world  ivtil  judge  wheth- 
er surprise  most  naturally  belonged  to  the  denial  or  to  the  assertion 
of  the  right. 

^'  If  the  St  Lawrence  is  regarded  a  strait,  as  it  o6ght  to  be,  eon> 
necting  navigable  seas,  there  would  be  less  controversy.  The  princi- 
ple on  which'  the  right  to  navigate  straits  depends,  is  that  they  are 
accessorial  to  those  seas  which  they  unite,  and  the  right  of  navigating 
which  is  not  exclusive,  but  common  to  all  nations  ^  th^  right  to  navi- 
gate the  seas  drawing  after  it  that  of  passing  the  straits.  Let  that 
principle  be  applied  to  the  present  case.  The  United  States  and 
Great  Britain  have,  betwjirn  thc^Hie  exclusive  right  of  navigating 
the  lakes.  The  St  Lawrence  connects  them  with  the  ocean.  The 
right  to  navigate  both  (the  lakes  and  the  ocean)  iifbludes  thktof  pasS' 
ing  from  the  one  to  the  othfer  through  the  natural  link.  Is  it  Iwason- 
ablo  or  just  that  one  of  tiie  two  co-proprietors  of  the  lakes  should  al- 
togctlier  exclude  his  associate  from  the  use  of  a  common  natural  boon- ' 
ty,  necessary  to  the  enj«>yment  of  the  full  advantages  of  them  ?  But, 
if  that  vast  mass  of  water,  collected  from  a  thousand  tributary  80uri;e8, 
in  the  immense  reservoirs  of  the  North  American  lakes,  and  cast  by 
them  into  the  Atlantic  ocean,  through  the  channel  of  the  St  Lawrence, 
is  to  be  considered,  in  its  transit  through  that  great  channel,  as  a 
river,  the  n^me  which  accident  has  conferred,  and  not  a  strait  the 
right  of  the  United  States  to  navigate  it  is  believed  to  be,  neverthe- 
less, clearly  and  satisfactorily  maintainable.  In  treating  tliis  sub- 
ject^ there  is,  tbijpughout  the  whole  of  the  British  pajier,  a  want  of 
just  discrimination  between  the  right  of  passage,  claimed  by  ofie  na- 
tioiv  through  the  territories  of  another,  on  land,  and  that  on  naviga- 
ble water.  The  distinction,  it  is  true,  is  not  always  clearly  adverted 
to  in  tlie  writers  on  the  public  law,  but  it  has  a  manifest  existence. 
In  the  former  case,  the  passage  c&n  hanlly  ever  take  place,  especially 
if  it  be  of-  numerous  bodies,  without  some  detriment  or  inconvenience 
to  the  State  or  its  citizens,  whose  territory  is  traversed.  If  the 
country  be  in  a  forest  state,  tir re  is  a  destruction  of  timber,  if  not  of 
«oU.   .If.^|n  acuJULj^ed;,  the  ^elds  are  trodden  down  and  .dilapidated, 


'I 
■  11 


'^\  ■  1 


4'- . 


.■;  ^ 


f 


\ 


SH  [Dec.  No.  4a.  j 

•nd  the  UM  of  the  roads  more  or  less  impairs  them.  In  both,  there 
is  danger  of  collisions  between  the  native  and  foreign  citizens.  But 
«  pasHuge  on  land,  through  the  territories  uf  another,  whenever  it  in 
innocent,  cannot  be  lawfully  reRised.  It  is  to  be  granted  by  a  neutral 
to  a  bolligerent  army,  if  no  serious  iiOury  is  likely  to  accrue  to  him. 
A»  the  right  of  judging  whether  the  passage  be  or  be  not  innocent, 
nnst  abide  somewhere,  expediency  suggests  that  it  should  be  exercis* 
ed  by  tlw  sovereign  of  the  soil.  But  his  judgment  and  dierision  must 
be  regulated  by  reason  and  justice ;  and,  of  course,  the  passage  ran* 
■ot  be  rightfully  refused  upon  grounds  merely  arbitrary.  How 
stands  the  case  ctf  a  passage  on  navigable  water  P  In  that,  no  injury 
Is  done  to  timbet  or  soil,  to  cultivation  or  tn  roads ;  no  dangerous 
collisions  between  the  iniiabitants  and  the  foreigners  arise  •  not  a 
trace  is  left  by  the  passenger  beiiind.  In  the  passage  of  the  St  Law- 
rence, for  example,  the  vessel  Ih  waited,  on  the  same  water  which  first 
ioats  it  from  the  territories  of  the  United  States,  to  the  ocean.  It  is 
true,  as  is  alleged  in  the  British  paper,  tliat  tins  water  washes  the 
quays  of  Montreal  and  Quebec,  passes  under  the  walls  of  a  principal 
lortrfss,  and,  also,  through  the  Jinat  settlements  of  Canada,  and  ex- 
tends along  a  space  of  nekr  six  hundred  miles,  within  the  dominions 
of  his  Britannic  Miyesty.  But  when  the  American  vessel  shall  have 
arrived  at  the  ocean,  to  whii^h  she  is  supposed  to  be  bound,  she  will 
jk»ve  inflicted  no  injury  upon  those  quays ;  the  guns  of  the  fortress  will 
bave  been  silent ;  tliose  fine  settlements  of  Canada,  and  that  space  of 
aix  hundred  miles,  (not  exactly,  as  is  anserted,  extending  through  the 
heart  of  a  British  colony,)  will  have  i^tnained  unmolested.  She  will 
have  left  no  traces  of  injury  behind  tier :  her  voyage  itself  will  not 
bave  made  on  the  Inhabitants  tlie  impressiim  of  a  passing  dream ; 
and,  like  the  water  on  wliich  she  was  bok'ue,  she  will  have  sought  her 
trackless  and  innocent  course  to  tite  oceati,  to  reach  which  Great  Bri- 
tain  would  be  as  much  justified  in  claiming  a  power  to  prevent  tlieono  ; 
as  the  other.  ^ 

**  Nor  ought  the  cases  of  rivers  which  rise  and  debouch^  altogether 
within  the  lerritorial  limits  of  the  r.Mne  nation,  to  be  confounded  with 
those  which,  having  their  sources  and  navigable  portions  of  their  bo- 
dies in  States  above,  finally  discharge  themselves  within  the  limits  of 
other  States  below.  In  the  former  instance,  tliere  is  no  basis  on  which  a 
right  in  common  can  rest  The  navigation  of  those  rivers,  ordinarily, 
can  only  be  desired  for  purposes  of  commerce  or  intt^rcourse  with  the- 
nation  to  whose  .Territories,  in  their  whole  extent,  they  are  confined. 
And  as  every  nation,  strictly,  has  a  right  to  interdict  all  foreign  com- 
merce, and  to  exclude  all  foreigners  from  its  Territories,  as  is  done,  • 
In  a  considerable  degree,  by  China,  it  follows  that  every  one  has  a 
right,  generally,  to  prohibit  an  entry  into  such  rivers,  or  the  use  of 
its  artifichil  roads.  This  right  of  prohibition  exists  when^  the  direct 
object  of  the  visit  of  foreigners  is  social  or  commercial  The  end  be- 
ing forbidden,  the  means  necessary  to  its  accomplishment  may  be  righi- 
fully  withheld.  But,  If  an  innocent  passage  is  dematideil  for  pui^ioses 
uncoi^nectcd  with  tlie  commerce  or  society  of  the  State  tlirough  whidt^^ 


it  ill 

righ^ 

mer 

ries 

well 

M 

oseol 
of  and 
were 


k.  %  :' 


»J. 


-f^. 


[Doc  No.  48.] 


e4 

21 


it'  to  fwaiml,  it  cmnot  justly  be  denied.  In  the  enJAjment  of  tbi* 
right  of  pMHage,  the  une  of  the  Territories,  in  which  It  is  txerted,  is 
meitlj  collaterial.  If  it  be  for  purposes  uf  lawAil  war,  the  end  car- 
ries the  means ;  and  the  neutral  cannot  deny  the  passage  without 
weighty  considerations. 

**  But  the  right  of  the  inhabitants^of  the  upper  banlc  of  a  river  to  the 
use  of  its  navigation  in  its  oassage  to  the  sea,  through  the  territories 
of  another  Sovereign,  stands  upon  other  and  stronger  ground.  If  th«y 
were  to  bring  forward  the  pretension  to  traile,  or  ojien  other  inter- 
course with  the  nation  inhabiting  the  banlcH  below,  against  its  consent, 
they  would  And  no  support  or  countenance  in  reason,  or  in  the  law  of 
nature.    But  it  is  inconceivable  upon  what  just  grounds  a  nation  l>c- 
low  can  oppose  the  right  of  tliat  above  to  pass  through  a  great  natu- 
ral highway  into  the  sea,  that  it  may  trade  or  hold  intercourse  with 
other  nations  by  their  consent  From  the  very  natureof  siich  a  river, 
it  must,  in  respect  to  its  navigable  uses,  be  considered  as  common  to 
all  the  nations  who  inhabit  its  banks,  as  a  free  gift,  flowing  from  the 
bounty  of  Heaven,  intended  for  all  whose  lots  are  cast  upon  its  bor- 
ders ;  and,  in  this  latter  respect,  it  is  clearly  distinguishable  from  ca- 
nals and  works  of  art,  from  the  use  of  which,  being  erected  at  tlie  ex-   ' 
pense  of  one,  all  others  may  be  excluded.    The  right  to  prohibit  the 
use  of  natural  channels,  deduced  in  the  British  paper,  from  that  of  the 
exclusive  nature  of  those  of  an  artiftcial  kind,  would  establish  the 
power,  if  it  were  practicable,  to  forbid  the  ei\joyment  of  the.  showers 
of  rain  which  are  equally  dispensed  by  the  Author  of  all  Ciood,  be- 
cause the  gardener  may  lawfully  deny  tlie  employment  of  his  watering 
vpssein  iti  the  irrigation  of  any  grounds  but  his  own.     Thf  land  may 
be  divided  through  which  a  river  passes,  or  which  composes  its  bed,  by 
artificial  lines  of  demarcation ;  but  the  water  itself  is  incapable  of  such 
a  division.    It  Ih  confluent  and  continuous.    And  that  portion  of  the 
floating  mass  which  is  now  in  the  territorial  dominion  of  the  lower  ■ 
tliation,  was  yesterday  under  that  of  Hie  nation  above ;  and,  contemning' 
alike  the  authority  of  all,  will,  to-morrow,  be  in  that  ocean  to  which  the. 
presumptuous  sway  of  no  one  has  as  yet  been  lawfully  extended.   The 
incontestible  right  which  one  nation  haM  to  trade  with  others,  by  their 
consent,  carries  along  with  it  that  of  using  those  navigable  means  ne- 
cessary to  its  enjoyment,  which  the  bounty  of  nature  has  provided  fqr 
all,  in  respect  to  seas,  and,  in  regard  to  rivers,  for  the  nations  who  in- 
habit them. 

**  The  British  paper  inquires  if  the  American  Government  can  mean' 
to  insist  6n  a  demand,  involving  such  consequences  as  it  describes, 
without  being  prepared  to  apply,  by  reciprocity,  tlie  principle  on  whitph 
the  demand  rests,  in  fkvor  of  Great  Britain  ?  The  American  Govern* 
ment  has  not  contended,  and  does  not  mean  to  contend,  for  any  princ|-i>, 
pie,  the  benefit  of  which,  in  analogous  circumstances,  it  would*  deir|r' 
to  Great  Britain.  Accordingly,  with  respect  to  that  branch  of  tiie  Op- 
lumbia  which  rises  north  of  thi  parallel  49,  (should  that  parallel  M 
miitudly  ftgi^eedto  as  the  boundary  between  the  territbriesnf  thc^wo 
Pov^wpSy )  R  case  analogous  to  thM  of  the  St.  Lawrence  will  be  presented. 


I 


/ 


v.. 


ID9C.  No.  4a.] 


/  ,- 


■i 


r- 


i  I- 


*  And  YOU  have  been  liercinbeforo  instructed,  in  the  event  of  thiit  brancli 
being  navigable  within  tha  Biitinh  territory,  to  atipul^te  for  the 
right  of  navigating  tlic  Columbia  to  tlie  ocean,  in  bohalf  of  Britiah 
Hubjecta.    In  rrgaid  to  the  MiNHiHNi|iui,  (tlie  example  put  by  tlio  BH> 
ti4h  PlenipotentiHi'icd.)  "  ''"■'tl'i^i*  exploration  of  the  country  ahall  de- 
vctope  a  connexion  between  that  river  and  Upiier  Canada,  ainiilar  to 
tliat  which  exists  between  the  United  States  and  the  St  Lawrence, 
the  American  Government,  always  fHithful  to  principles,  would  be 
ready  to  apply  to  the  MisHissippi  the  doctrines  which  it' now  holds  in 
regard  to  ibt  great  northern  rival.     It  is  not  neceasary  to  diacusa  all 
the  extreme  cases  whicii  may  be  fancifully  suggested,  such  as  a  fo- 
reign claim  to  pass  the  Isthmus  of  Diirien,  to  drive  a  trade  between 
£uro|»e  and  distant  ludiu.  throiigli  two  oceans ;  or  that  of  passing 
through  England  to  trade  witii  France  or  other  |)ortions  of  the  £u>. 
ropcan  continent.    Examplrs  of  that  kind  belong  to  the  species  of  so- 
phistry which  would  subvert  all  principles,  by  pushing  tlieir  assumed 
consequcnres  into  the  regions  of  extravagant  supfiosition. 

<*The  British  pa|ier  denies  that  tlie  engagements  of  Paris,  in  1814, 
and  at  Vienna  in  tlie  fcillowing  year,  between  the  Powers  of  Europe, 
in  respect  to  'the  na\  igation  of  rivers,  give  any  countenance  to  the 
natural  riglit  assorted  by  tliis  Ciovernment.  ^t  is  difficult  to  conceive 
what  other  princi]tle  than  that  of  a  strong  s^nse  of  the  ii\justice  of 
withliolding  fitim  nations,  whose  territories  are  washed  by  rivers,  tlat 
privilegeof  their  navigation,  dictated  those  engagements.  I'he  clause, 
cited  in  the  paper  under  consideration,  is  not  in  tlie  nature  of  an 
original  grant,  but  appears  to  be  founded  on  a  pre-existing  (and 
which  could  be  no  uttier  than  a  natural)  right.  *  The  Po\vers  <vhose 
States  are  ^narated  or  crossed  by  the  same  navigable  river,  engage 
to  regulate,  by  common  consent,  hii  that  reganis  its  liaviganun.' 
The  regulatiim  in  not  of  the  right,  but  of  the  use  of  the  riglit,  of  navi- 
gation. And  if  the  consent  of  the  local  sovereign  is  necessary  to  give 
validity  to  the  regulation,  so  is  tliat  of  the  sovereign,  above  or  beu>w, 
whobe  territories  are  ''rossed  t>y  the  same  river ;  and  it  is  not  stipu- 
lated that  their  use  of  the  right  of  navigation  was  to  remain  in  abey- 
ance until  the  manner  of  its  enjoyment  was  regulated  by  the  consent 
of  all  the  interested  Powers.  (In  the  contrary,  it  cannot  be  doubted, 
that  it  was  the  understanding  of  the  great  Powers  at  Vienna,  that  all 
the  States,  concerned  in  the  navigation  of  tlie  Rhine  and  the  other 
enumerated  rivers,  were  to  be  forthwith  let  into  the  enjoyment  of  the 
navigation  of  them,  whether  it  was  previously  regulated,  or  not,  hy 
common  consent.  Without  such  an  understanding,  it  is  manifest  that 
any  one  of  the  States,  by  withholding  its  assent  to  proposed  regiita- 
tiona,  upon  real  or  ostensible  grounils  of  objection,  might  indefinitely, 
nosiiione,  if  not  altogether  defeat,  the  exercise  of  the  recognized  right.. 
The  fact  of  subjecting  tbe  use  of  a  right  to  treaty  regulations,  as  waa 
proposed  ftt  Vienna  to  be  done  with  the  navigation  of  tiie  Eui^ipeaiv 
rivers,  and  as  was  also  done  in  the  case  of  the  Datpube,  and  other  in-, 
stances  cited,  does  not  prove  that  the  origin  of  the  right  is  ttmyren- 
tional,  and  not  natural.    It  often  happens  to  bo  highly  convenient,  if. 


fcl 


a 


pjoc.  No.  48.;i  '0, 

not  ■ometimes  indispensable,  to  guard  a^kihst  collisions  and  contr^ 
venties,  by  prescribing  certain  rales  Tor  liie  use  of  a  natural  risht. 
Tbe  1h>»  or  nature,  tliougb  sufficiently  intelligible  in  its  great  outllncfl 
and  general  puqiose)),  aoes  not  always  rcuch  every  minute  detail, 
wliicn  is  called  Tor  by  the  complicated  varieties  and  wants  of  modern 
navigation  and  commerce.  And  hence  the  rigtit  of  navigating  tho 
ocean  itself,  in  many  instances,  principally  incident  to' a  state  of  war. 
Is  subjected,  by  innumcruble  treaties,  to  various  regulations.  Thts* 
regulations— the  transactions  at  Vienna,  relative  to  (lie  navigation  of 
Die  fiuropean  rivers,  and  other  unuloguus  stipulations — sliouTd  be  re- 
garded only  as  the  spontaneous  homage  of  man  to  the  superior  wisdom 
of  tbe  paramount  Lawgiver  of  the  UuiverHc,  by  delivering  his  great 
works  from  tbe  artificial  sharlileN  and  sflAsh  coiitrivaoces  to  which 
tliey  have  b««sn  arbitrarily  and  unjustly  nubjectcd. 

<•  The  force  of  the  example  in  the  definitive  treaty  of  peace  of  178S« 
between  Great  tiritaiii  and  (lie  United  States,  by  whicli  tiiey  stipu* 
latcd  that  the  navigation  of  tlie  river  MissLsHippi,  from  its  source  t» 
the  ocean,  shall  forever  ri-iiiuiii  True  and  upcii  to  both  parlies,  is  not 
weakened  by  any  obscrvutiuiis  in  the  Britisli  iw^ier.  A  strongei-  case 
need  not  be  presented  of  the  admission  of  the  piinciple  ttiut  a  State, 
whose  territories  are  washed  by  a  river,  cannot  be  justly  excluded 
•from  its  navigation  to  the  ocean  by  an  intervening  Power.  Spain  held 
the  entire  riglit  bunk  of  the  Mississippi  t'roin  its  source  to  tlie  ocean, 
and  tiie  left  bank  ti-om  the  ocean  up  tu  the  3 1st  degree  of  north  lati- 
tude, from  which  point,  to  its  source,  thu  residue  of  the  left  bank,  ft 
was  supiKised,  belonged  to  the  United  States  uitd  Great  Britain  in 
severalty.  Spain,  with  resiiect  to  the  mouth  of  the  Mississippi,  thus 
stood,  in  1783,  in  the  Haute  relation  to  the  United  States  and  tu  Groat 
Britain,  as  Great  Britain  now  does,  in  regard  to  the  mouth  of  tlie  Sj. 
Lawrence,  to  tlie  United  States.  What  was  the  law  of  that  position 
of  Spain,  as  solenuily  declared  by  both  the  present  contending  parties  i 
It  was,  that  the  navigation  of  tiie  river  Mississippi,  from  its  source  to 
the  ocean,  thatl  forever  remain  free  and  open  to  them  botli.  If  Great 
Britain,  by  tlie  success  of  the  war  terminated  in  tlie  treaty  of  176!H 
was  enabled  to  extort  from  France  a  concession  of  tlie  free  navigation 
of  the  Mississippi,  as  is  asserted  in  tlie  British  argument,  her  condi- 
tion was  not  the  same  in  1783.  Yet,  amidst  all  her  reverses,  without 
consulting  Spain,  she  did  not  scruple  to  contract  with  tbe  United 
States  for  tlieir  reciprocal  fi*eedum  of  navigating  the  Mis8issip|ii,  from 
its  source  to  the  ocean,  through  Sfianish  territory,  and  passing  the 
finest  settlements  and  the  largest  city  of  Louisiana,  as  well  us  all  the 
JSpanish  fortresses  of  the-  lower  Mississippi.  Is  Gix'at  Britain  pre- 
pared to  promulgate  a  Jaw  for  Spain  to  which  she  will  not  herself 
submit,  in  analogotis  ciiTumstunccs  ^  •« 

,  **It  is  not  thought  to  be  neccMSury  further  to  extend  observatioaa' on 
the  British  paper,  uimn  which  1  have  been  conimcntuig.  Ifotbers,  in 
the  course  of  your  negotiation,  should  bo  required,  they  will  rei^dily 
yesent  themselves  to  you.  It  is  more  agri^ile  to  turn  from  a  jpro- 
tracted  <iiscussiurt>  wbich^  although  we  aw  entirely  confident  of  having 


> 


-«»' 


^t^ 


-«»»#l* 


ft 


I   * 


f    '   »! 


ft 


if 


it  [pUttc.  No.  48.} 

the  right'on  our  side,  if  wo  are  to  judge  fh>mifie'imlBi,mayw^ 
by  leaving  eacji  party  in  possession  of  the  same  opinion  which  he  en* 
tertaincd  at  its  commencement,  to  the  consideration  of  some  practical 
arrangement,  which,  if  possible,  shall  reconcile  the  views  of  both.    A 
riiver,  it is  manifest,  may  pass  through  the  territories  of  several  Pow- 
ers in  such  manner  as  that,  if  each  were  to  interdict  the  others  its 
navigable  use,  within  his  particular  jurisdiction,  every  one  of  .thehi 
might  be  deprived  of  all  tlio  advantages  of  which  it  could  be  snsccpti>'* 
ble.     And,  if  the  United  States  were  disposed  to  exert,  within  their' 
jurisdiction,  a  power  over  the  St.  Lawrence,  similar  to  that  which  is 
exercised  by  Great  Britain,  British  subjects  could  be  made  to  expe-^' 
rience  the  same  kind  of  inconvenience  as  that  to  which  American  citi* 
zens  are  now  exposed.   The  best,  and,  for  descending  navigation,  tlie 
only  channel  of  the  St.  Lawrence  between  Barnbart's  Island  and  tlie 
Amefican  shore  is  within  our  limits :  and  every  British  boat  and  raft,  .^ 
therefore,  that  descend  the  St.  Lawrence^  comes  within  the  excluslv<^ ' 
jurisdiction  of  the  United  States.    The  trade  of  the  Upper  Province 
is,  consequently,  in  our  powcir,  and  a  report  to  the  Legislature  of  !Stw 
York,  under  date  28tK  March,  1885,  (of  which  a  copy  is  now  put  into 
your  possession)  concludes  by  recommending  an  application  to  Con« 
gress  to  exercise  the  power,  tims  possessed  by  us,  in  retaliation  for 
thev act  of  the  British  Parliament  of  5tk  August,  1622,  entitled  <An 
act  to  regulate  tiie  trade  of  the  Provinces  of  Lower  and  Upper  Cana- 
da-*   If  the  recommendations  of  that  re|)ort  were  not  adopted  by  the 
General  Assembly  of  New  York,  and  if  Congress  hAi  hitherto  for- 
borne  to  place  Canndian  navigation  under  any  rwtrictions,  in  their 
transit  througli  our  territory,  it  has  been  because  of  wi  unwlllingnesi 
toi'ullow  am  unfriendly  example,  and  from  a  liope  that  mutual  and 
candid  explanations  with  Great  Britain  might  renove  M  existing 
causes  of  hantship  and  complaint  Prior  tn  the  passage  of  the  British 
act  of  Parliament,  of  1 822,  and  fnnn  the  first  settknont  of  the  terri- 
tory of  the  United  States  bordering  on  the  lakes  and  the 'St  Law- 
rence, their  citizens  had  met  with  no  difficult}'  in  die  disposal  qf  the 
surplus  produce  of  their  industry,  consisting  chiefly  of  pot  and  pearl 
ashus,  lumber,  salted  provisions,  and  flour,  at  the  markets  of  Montreal 
and  Quebec.  It  was  there  sold,  not  for  domestic  consumption,  but  for  ^ 
subsequent  exportation,  by  sea,  to  distant  markets,  principally  British  f^ 
West  India  Colonies.    This  trade  was  reciprocally  beneficial;  tlM)];^ 
American  citizen  finding  bis  ailvantage  in  a  ready  sale  of  his  produce,  ;^ 
the  British  subject  bis,  in  the  commisirion,  storing,  and  other  inciden-  '" 
tal  transactions ;  and  British  navigation  enjoyihg  the  exclusive  beniifit 
of  re-transporting  the  produce  to  its  ftpal  desdhation.    This  trade  had 
increased  to  such  an  extent  that  the  single  article  of  lumber,  traiis- 
ported  down  the  St  Lawrence  in  the  year  IMt,  ammintad,  in  valiie^ 
to  £650,000,  without  bringing  into  the  estimate  the  imrtion  of  that 
article  Which  found  its  way  through  lake  Champlain  and  tbi  8«hi»|  te 
MoMireal  and  Quebec,    'fhis  beneficial  and  innocent  tradet  so  ftur  wi 
it  dealt  in  tbe  principal  articles  of  ffoiur  and  lumber,  was  tumost  e»> 
tirely  destroyed  by  the  dttties  im{insed  in  the  act  of  PstrlianeMt  (tf  Au- 
gust, 1822,  which,  inWect,  if  not  in  form,  are  prohibitory. 


•< 


am 


■5**^. 


[Doc.  No.  43.] 


3S 


nay  terminate 

wiiicli  he  en. 
lome  practical 
'8  of  both.    A 
several  Pow- 
ihe  others  its 
r  one  of  .theiii 
il  be  siisccpti- 
I  within  their 
that  which  is 
nade  to  expe- 
merican  citi- 
ivigation,the 
land  and  ttie 
•oat  and  raft, 
Ihe  exclusive 
[»er  Province 
itureof  >iew 
now  put  into 
ition  to  Cpn> 
staliation  for 
sntitled  <An 
Upper  Cana> 
tpted  by  the 
hitherto  for. 
imst  in  their 
iwiilingness 
nnituar  and 
all  existing 
the  Britiah  t 
»ftheterri. 
e  St  Law. 
osal  9f  the 
t  and  pearl 
■''Montreal 
.  bat  for 

y  British 
ficial;  the 

produce, 

inciUen- 
ive  bem^flt 

trade  had 
trans- 

in  valuer 

n  of  that 

dormlto 

Ml  Auras 

mostw* 


y 


«  Should  not  the  mutual  interests  of  tiie  two  countries,  in  respect  to 
this  trade,  independent  of  any  considerations  of  right  in  the  naviga^ 
tinn  of  the  St.  Lawrence,  produce  an  arrangement  satisfactory  to 
both  parties  ?  It  is  a  little  remarkable  that  the  opposition  to  such  an 
arrangement  proceeds  from  the  party  having  the  greatest  interest  in 
making  it.  That  of  the  United  States,  as  has  been  already  stated, 
is  simply  to  sell  a  surplus  produce  of  labor.  The  place  of  its  con. 
sumption  is  the  West  Indies.     If  it  can  be  disposed  of  short  of  that 

glace,  at  Montreal  or  Quebec,  the  citizens  of  the  United  States  would 
e  content  But.  it' they  cannot  sell  it  in  those  cities ;  if  Great  Britain, 
by  the  imposition  of  duties,  wliich  it  will  not  bear,  prevent  a  sale  ; 
they  then  desire  to  exercise  the  privilege  of  passing  out  the  St.  Law- 
rence, and  seeking  a  market  wherever  they  can  find  it.  Some  portion 
of  the  produce  which  would  take  that  natural  dircc:tion,  is  now  trans, 
ported  through  the  great  canal  which  unites  the  Hudson  and 
Lake  Erie.  When  the  canal  designed  to  connect  the  great  canal 
with  the  St  Lawrence,  at  or  near  Uswego,  which  is  in  con> 
siderable  progress,  shall  be  completed,  other  portions  of  American 
produce  will  seek  the  market  of  the  city  of  New  York,  instead  of  that 
of  the  Canadian  capitals.  If  another  canal,  which  is  projected, 
shall  ever  be  cut,  that  which  is  proposed  to  unite  the  St.  Lawrence  to 
Lake  Cbamplain,  the  interest  of  this  country  in  the  navigation  of  the 
St.  Lawrence  will  be  stiil  further  diminished.  Contrast  this  state 
of  our  interest  in  the  trade  in  question  with  that  of  Great  Britain. 
It  will  nut  be  denied  that  the  two  British  cities  of  Montreal  and  Que^ 
bee  would  be  much  benefitted  by  the  prosecution  of  the  trade.  The  British 
tonnage  enjoys,  and  if  the  navigation  of  tiie  St  Lawrence  were  free- 
ly thrown  open  to  us,  would  probably  continue  to  enjoy,  the  monopo. 
ly  of  the  exportation  of  our  produce,  either  as  British  or  American 

{iroprty,  to  foreign  possessions.  Tliat  produce  serves  to  swell  the 
ist  of  articles  of  general  commerce  in  which  Great  Britain,  more 
than  other  nation,  is  concerned,  and  ministers  directly  to  the  wants  of 
British  colonies.  If  it  enters  somewhat  into  competition  with  simi. 
lar  produce  of  Canadian  origin,  that  consideration  should  be  neutral- 
ized, by  the  fact,  that  the  British  West  India  colonist  enjoys 
the  benefit  of  the  competition.  For  it  cannot  be  supposed  to  be  a  part 
0f  British  policy  to  shut  up  the  American  supply,  that  one  British  co* 
lonist  may  thereby  sell  to  another  British  colonist,  at  a  price  some- 
what higher  than  he  otherwise  could  do,  without  the  remotest  prospect 
of  its  reduction  from  [fori  any  length  of  time  that  the  exclusion  and  the 
monopoly  might  exist.  Without  evtrrJIng  the  comparison  further,  it 
must  be  evident  that  Great  Britain  is  more,  or  at  least  as  much,  interested 
in  the  trade  as  we  are.  Our  loss  is  not  that  of  the  entire  value  of  the 
articles  which  are  prevented  from  reaching  a  market  under  the 
operation  of  the  British  laws,  but  of  the  difference  only  in  value,  if 
I  there  ^be  any,  between  those  articles  and  the  substitutes  on  which 
our  labor  exerts  itself  in  consequence  of  the  existence  of  that  impedi. 
ment.  With  this  view  of  the  matter,  I  have  prepared  two  articles, 
hvhich  acconipany  these  instructions,  under  tho  designation  of  A  and 


'^ 


26 


[Dbc.  No.  48.] 


111 


■'t 


V  n 


B ;  and  which  may  be  successively  proposed  by  you,  during  the  pi-o- 
gress  of  the  negotiatioif.  Dy  the  first,  the  navigtitiuri  oi'  ;he  St.  Law- 
rence, up  and  down,  from  and  to  the  siccan,  is  declared  to  belong  to 
the  citizens  of  the  United  States  ;  and  the  ports  of  Montreal  and  Que- 
bec are  open  to  the  importation  and  dis|]osal  of  their  lumber,  pot 
and  pearl  ashes,  flour,  and  salted  provisions,  brought  from  the  Lake 
and  St.  Lawrence  countiy.  The  privilege  is  limited  to  the^e  articles, 
because  they  ai*e  all  produced  in  tliat  quarter,  which  it  is  important 
should  have  that  vent ;  and  which,  not  being  supposed  to  be  wanted  in 
those  cities  for  tlie  consumption  of  either  Canada,  are,  subsequently^ 
exported  from  those  places  of  entrepot  to  foreign  countries.  From 
thatcause,  it  would  be  unreasonable  that  they  should  be  liable  lo  pay  any 
higher  or  other  duties  than  similar  articles  of  Canadian  origin.  There 
is  another  reason  for  the  limitation  :  we  could  not  insist  upon  a  gene- 
ral and  indiscriminate  admission  into  those  ports  of  all  produce  and 
manufactures  of  the  United  States,  free  of  duty,  witliout  being  pre- 
pared to  allow,  as  the  equivalent,  an  admission  into  our  northern  Ter- 
ritories of  all  British  produce  and  manufactui'es  ou  the  same  terms. 
But  such  an  admission  of  British  pi'odure  and  manufactures,  if  not 
unconstitutional,  would  be  very  unequal  as  it  respects  the  Lake  coun- 
try and  other  parts  of  the  United  States.  The  fii'st  jai-ticle  also  pro- 
vides for  a  right  of  dcposite  at  Montreal  and  Quebec,  or  such  other 
place  as  the  British  Government  may  designate.  Possibly,  the  British 
Government  may  require  a  reciprocal  privilege  of  introducing  from 
the  Canadas  into  the  United  States,  free  from  dut)',  and  tliere  disposing 
of  Canadian  lumber,  pot  and  pearl  ashes,  floui ,  and  salted  provisions. 
Such  a  privilege  would  be  of  essential  betiefit  to  the  upper  Province, 
in  opening  to  it,  thiough  the  canals  of  the  State  of  JNew  York,  the 
market  of  tlie  city  of  >jcw  York.  Should  such  a  stipulation  be  re- 
quired, yon  may  agree  to  it,  with  a  provision  tiiat  the  inhabitants  of 
Canada  shall  be  subject  to  the  payment  of  tlie  same  tolls,  ferriages, 
and  other  charges,  in  all  resjiects,  as  citizens  of  the  United  States, 
from  time  to  time,  are,  or  shall  be  liable  to  pay.  You  may  also 
agree  to  add  furs  and  |)eltries  to  the  list  of  articles  which  each  party 
may  introduce  into  the  territories  of  the  other,  free  from  duty. 
This  would  be  a  stipulation  very  advantageous  to  Great  Britain,  in 
opening  a  shorter  .and  better  route  to  the  ocean  for  those  articles,  than 
that  through  the  St.  Lawrence. 

«Bythe  second  article,  ourrightsof  navigation,  and  to  a  place  of  de- 
posite  simply,  is  stipulated,  without  the  privilege  of  introducing  into 
the  Canaclas  any  articles  whatever  of  American  produce.  Both  arti- 
cles secure  to  British  subjects  the  right  freely  to  navigate  tlie  St. 
Lawrence,  where  the  channel  is  within  our  exclusive  jurisdiction.  The 
lii-st  w  (uild  sccuro  all  that  we  can  ask ;  the  second  the  least  that  wo 
can  take. 

**  We  could  not  rightfully  object  to  a  refusal  to  allow  sales  of  Ameri- 
can produce,  free  of  duty,  within  British  jurisdicticm,  however  un- 
friendly it  would  be.  But,  in  that  case,  there  ought  to  be  no  limita- 
tion of  the  articles  of  our  export  or  import  trade.  On  the  supposition  of 


[Doc.  No.  43.] 


• 


such  a  refusal,  the  Canadas  would  be  strictly  entrepdts,  and  not  places 
of  consumption  of  tlie  objects  of  our  trade,  in  either  of  its  directions ; 
-  and,  therefore,  there  should  be  no  restriction,  as  to  what  we  should,  or 
should  not,  export  or  import. 

«  Between  the  maximum  and  the  minimum,  which  those  two  articles 
present,  there  are  several  intervening  modifications,  of  which  I  will 
now  specify  some  that  present  tiiemselves,  and  to  which,  if  you  cannot 
do  better,  you  are  authorized  to  agreo : 

**  1.  It  may  be  proposed  to  limit  the  right  of  deposite  to  Quebec. 

"  2.  The  sale  of  our  produce  may  be  limited  to  the  port  of  Quebec; 
and, 

«3.  The  list  may  be  increased  of  the  articles  which  we  may  be  al- 
lowed to  sell,  at  either  or  both  of  those  cities,  free  of  (hity,  so  as  to  in- 
clude all,  or  other,  articles  of  the  growtii,  produce, or  manufsictiiies,of 
the  United  States,  with  tlic  permission  to  import  into  the  United 
States  similar  produce  of  Caiiiulian  origin,  without  any  correspond- 
ing privilege,  of  introducing  into  them  British,  European^  or  othor 
foi-cign  manufactures. 

*»lf  you  should  find  the  Brit'sh  Government  unwilling  to  agree  to 
either  of  the  two  preceding  articles,  with  or  without  the  modifications,, , 
or  some  of  them,  abovementioned,  you  will  decline  entering  into  any 
arrangement  upon  the  subject  of  the  navigation  of  tlic  St.  Lawrence^ 
and  take  any  counter  proposals,  which  they  may  offer,  for  reference 
to  your  Government.  Neither  the  third  article  of  the  treaty  of  1794, 
nor  that  which  was  proposed  by  either  party  at  the  negotiation  of  the* 
convention  of  1815,  nor  that  which  was  offered  by  Lord  Castlereagh» 
in  March,  1817,  would  serve  as  a  proper  basis  to  regulate  the  right 
which  we  claim  to  the  navigation  of  the  St.  Lawrence.  Without  ad- 
verting to  any  other,  decisive  objections  to  the  tliird  article  of  the 
treaty  of  1794,  are,  that  it  comprehended  tlie  Indians  on  both  sides  of 
the  boundary  between  the  territories  of  the  United  States  and  Great 
Britain ;  and  left  Great  Britain  at  full  liberty  to  impose  whatever  du- 
ties her  policy  miglit  dictate,  upon  our  produce  entering  the  Cana- 
dian ports.  The  act  of  Parliament  of  August,  1 822,  would  not  be  con- 
trary  to  the  stipulations  of  that  article.  The  latter  objection  equally 
applies  to  both  the  American  and  British  projects  of  an  article,  which 
were  proposed,  but  neither  of  wliicli  was  agreed  to,  in  the  negotiation 
of  1 8 1 5,  as  well  as  to  that  of  Lord  Castlercagh.  Nor  would  the  United 
States  find  any  protection  against  the  exercise  of  tlie  power  of  im- 
posing duties,  by  agreeing  to  the  ordinary  stipulation  in  commercial 
treaties,  restricting  the  duties  imposed  to  the  rate  at  which  similar 
articles  are  liable  when  imported  from  otiier  countries.  Bc(  ause,  in 
point  of  fact,  no  article,  similar  to  those  which  are  imported  from  our 
northern  Territory  into  Canada,  is  introduced  there  from  any  foreign 
country.  No  foreign  country  stands  in  a  similar  relation  to  Canada, 
that  the  northern  parts  of  the  United  States  do.  And  Great  Britain 
would  not,  therefore,  be  restrained  from  imposing  duties  upon  our 
produce,  which  should  even  be  prohibitory  in  their  effect^  by  their 
operation  upon  similarproduce  of  other  countries. 


r'M 


I  »^ 


w  :      % 


.11 


i\   I 


II  [Doc.  No.  48.] 

« Whilst  Great  Britain  maybe  unwilling  to  enter  into  any  treaty 
stipulationB,  aclinowledging  our  riglit  to  the  navigation  of  the  SL 
liawrence,  she  may  not  be  indisposed  to  consent,  by  her  own  volun- 
tary act,  to  repeal  all  prohibitory  and  other  duties  imposed  on  Ame-^ 
rican  produce,  so  as  to  admit  it  into  the  ports  of  Montreal  and  Que. 
bee  on  the  same  terms  as  the  same  l&ind  of  produce  is  received  front 
Upper  Canada.  Such  an  equal  admission  of  our  produce,  would,  in  a 
great  measure,  supersede  the  necessity  of  discussing  and  settling,  at 
tliis  time,  our  right  to  the  navigation  ot  the  St.  Lawrence,  and  of  con- 
siiiecing  the  regulations  which  the  intei'ests  of  both  parties  might  re* 
quire  in  tho  practical  exercise  of  the  rigiit.  Uur  citizens  would  enjoy, 
ill  thase  cities,  a  ready  and  certain  marliet  for  their  produce,  to  ob- 
tain which,  would  be  the  primary  object  of  securing  ta  them  the  na> 
ligation  of  the  St  Lawrence.  It  is  because  we  cannot  demand  such 
an  admission  and  privilege  of  selling  our  produce,  as  a  matter  of 
right,  and  because  Great  Britain  may  decline  the  concession  of  it, 
although  manifestly  beneficial  to  herself,  that  we  desire  to  have  this 
interest  placed  upon  some  solid  and  permanent  foundation.  But,  if 
you  should  be  unable  to  obtain  the  British  assrnt  to  either  of  the  ar- 
tides  proposed,  with  or  without  any  of  the  modifications  of  tlieni,  which 
have  been  suggested,  it  would  then  be  satisfactory  to  htive  the  assu- 
i*ance  of  the  British  Government  that  our  piodure,  or.  at  least,  the 
principle  articles  of  it.  which  have  been  mentioned,  shall  be  received 
at  Montreal  and  Quebec  on  the  .same  terms  as  the  like  kinds  of  Ca- 
nadian produce  are  there  received.  And  you  may,  in  turn,  assure  the 
British  Government  that  the  President  will  rccommeijd  to  Congress 
to  reciprocate  any  British  acts  of  liberality  and  good  neighborhood, 
in  regard  to  the  admission  and  sale  of  American  produce  in  the  Ca^ 
nadas,  by  acts  of  equal  liberality  and  good  neighborhood,  on  our  side, 
in  respect  to  the  admission  and  sale  of  Canadian  produce  in  the  Unit- 
ed States.  It  is  within  the  competency  of  the  mutual  legislation  of  the 
two  countries  to  remove  many  of  the  existing  causes  of  complaint, 
without  either  party  conceding  or  renouncing  rights  which  there 
might  be  an  unwillingness  to  admit  or  surrender. 

'» By  an  act  of  the  British  Parliament,  passed  on  tlie  5th  July,  1825, 
entitled  <An  act  to  regulate  the  trade  of  the  British  Possessions, 
abroad,*  inland  importation  is  allowed  into  the  Canadas,  from  the 
United  States,  in  vessels,  boats,  or  carriages,  belonging  to  them,  of 
any  goods  which  might  be  lawfully  imported  by  sea ;  but  such  goods, 
must  be  brought  to  a  port  or  place  of  entry,  and  are  to  pay  the  same 
duties  as  if  they  were  imported  by  sea.  They  may  be  warehoused  at 
Quebec,  only,  for  exportation,  without  paying  duty,  under  certain  re- 
strictions ;  but  then  the  Collectors  and  Comptrollers  of  the  port  are 
empowered  to  declare,  in  a  written  notice,  to  be  by  them  promulgated,; 
'what  sorts  of  goods  may  be  so  warehoused.*  (See  28,  29,  SO,  SI, 
S2,  3S,  and  S4  sections,  &c.,  of  the  Act)  Under  this  authority,  it 
would  be  competent  to  those  officers  to  exclude,  at  their  pleasure,  from 
the  privilege  of  warehousing  our  most  valuable  productions.  If,  by 
British  legislation,  (on  the  supposition  that  you  cannot  prevail  on  the< 
British  Government  to  regulate,  by  compact,  the  navigation  of  the 


./ 


A 


X-'Z 


r  into  any  treaty. 
Ration  of  the  St 
i  her  own  volun- 
mposcd  on  Ame^ 
ontreal  and  Que. 
is  received  front 
duce,  would,  in  a 
;  and  settling,  at 
ence,  and  of  con< 
parties  might  re« 
ens  would  enjoy, 
'  produce,  to  ob- 
;  tu  them  the  na« 
lot  demand  such 
,  as  a  matter  of 
cuiicessiun  of  it, 
isire  to  have  this 
idation.    Bui,  if 
either  of  the  ar- 
ts of  them,  which 
9  have  the  nasn. 
>r.  at  least,  the 
ihall  be  received 
kc  kinds  of  Ga- 
turn,  assure  the 
eijd  to  Congress 
'  neighborhood, 
duce  in  the  Ca^- 
od,  on  our  side, 
Jce  in  the  Unit- 
'gislation  of  the 
of  complaint, 
s  which  there 

Jth  July,  1825, 

sh  Possessions 

Adas,  from  the 

ng  to  them,  of 

lut  such  goods 

pay  the  same 

warehoused  at 

ler  certain  re- 

the  port  are 

promulgated, 

S9,  30,31, 

authority.  It 

leasure,  from 

ions.     If.  by 

irevail  on  the^ 

;atioB  of  the 


[Doc.  No.  4d.] 

1 8t  Lawrence,  In  the  manner  which  has  been  herein  proposed,)  the 
[privilege  of  warehousing  our  produce  was  placed  on  a  more  stable 
f  footing,  and  we  were  allowed  to  '  xport  it  in  our  own  vessels,  it  would 
'  be  a  considerable  improvement  of  the  existing  state  of  things. 

«  During  the  negotiation  between  Mr.  Rush  and  the  Britisli  Plenipo- 
jtentiaries,  a  desire  was  manifested  by  the  latter  to  couple  together  the 
[disputod  points  under  the  fifth  article  of  the  Treaty  of  Ghent,  and 
[the  right  asserted  by  the  United  States  to  the  fi'ee  navigation  of  the 
St.  Lawrence ;  and,  on  tlie  supposition  of  those  two  subjects  being 
;  so  blended,  the  British  Plenipotentiaries  stated  that  they  were  even 
I  prepared  to  make  offers  of  compromise  and  settlement,  founded  *on  a 
I  most  libei'al  and  comprehensive  view  of  the  wishes  and  interests  of 
^the  United  States.'    (See  pages  from  80  to  86  of  the  pamphlet,  and 
protocols  of  the  17th  and  18th  conferences.)    These  offers  were  to  be 
made  on  the  basis  of  the  United  States  waiving  their  right  to  the 
navigation  of  the  St.  Lawrence,  which,  however.  Great  Britain  was 
willing  to  grant  to  them  on  a  full  equivalent ;  and  that  equivalent,  it 
is  to  be  inferred,  was  expected,  by  thi*  British  Plenipotentiaries,  to  be 
furnished  in  the  disputed  territory  to  wliich  the  fifth  article  of  the 
Treaty  of  Ghent  relates.     What  those  offers  were,  they  declined  to 
communicate  to  Mr.  Rush,  although  invited  to  do  so,  in  order  that  he 
might  transmit  them  to  his  Government     'l*he  Government  of  the 
United  States  cannot  consent  to  renounce  a  right  which  they  conceive 
belongs  to  them  by  the  highest  species  of  title.    If,  as  the  British 
CK>vernment  professes  to  believe,  the  right  has  no  just  foundation,  why 
does  it  insist  upon  its  renunciation  ?  Mor  can  this  Government  agree 
to  barter  away  any  portion  of  the  territorial  sovereignty  of  Maine, 
or  the  proprietary  rights  of  the  Commonwealth  of  Massachusetts,  for 
the  navigation  of  a  river  in  which  neither  of  them  has  any  direct  in- 
terest.    If  the  question  of  the  navigation  of  the  St  Lawrence  could 
be  accommodated  in  a  manner  satisfactory  to  both  parties,  so  as  to  let 
the  citizens  of  the  United  States  into  the  practical  and  beneficial  en- 
joyment of  it.  their  Government  would  be  willing  that  the  arrange- 
ment should  be  equally  silent  in  regard  to  the  admission  on  the  one 
side,  or  the  abandonmei|(  im  the  other,  of  the  right  as  claimed  and  de- 
nied by  the  parties,  respectively.     It  is  not  easy  to  comprehend  why 
the  British  Plenipotentiaries  withheld  the  commutiication,  to  Mr. 
Bush,  of  the  very  liberal  offers  which,  according  to  their  account  of 
them,  they  were  charged  to  make.     When  they  appeared  disposed  to 
yield  to  the  separation  of  the  two  subjects,  as  urged  by  Mr.  Rush, 
they  still  declined  to  make  this  proposal  of  compromise  in  i-espect  to 
the  northeastern  boundary.    Under  a  belief  that  no  prejudice  can  re- 
sult to  either  party  from  a  full  communication  and  a  fair  considera- 
tion of  those  offers,  in  respect  to  either  or  both  questions,  you  will  in- 
vite a  disclosure  of  them,  for  reference  home.     It  is  obvious,  that  no 
instructions,  adapted  to  them,  can  be  given,  until  they  are  known ;  nor 
can  we  come  under  any  preliminary  obligation  as  the  price  of  their 
communication.    If  they  are  ever  intended  by  Great  Britain  to  be 
brought  forward,  the  sooner  it  is  done  tite  better  for  the  economy  of 
flme,  and  the  speetly  settlement  of  the  questions,  should  they  prove 


\ 


( 


10  [Boc.  No.  43.1 

acceptable  to  this  Gorernraeiit.  Had  tliey  been  communicated  to  Mr. 
Rush,  the  delay  would  have  been  avoided  which  must  now  take  place 
from  your  transmitting  them  totiie  United  States,  and  receiving  from 
hence  tlie  necessary  instructions,  if  the  offers  should  bo  made  known 
to  you.** 


Extracts  of  a  letter  from  Mr,  Clay  to  Mr.  Qallatin,  Envoy  Extraordu 
ry  attd  Minister  FUnipotentiary  to  Great  Britain,  dated  LexingtoUf 
Sth  Mgitst,  1826. 

**  Tour  letter,  under  date  of  New  York,  on  the  S9th  of  June  last, 
having  been  duly  received  at  the  Department  of  State,  and  submitted 
to  tlie  President,  was  subsequently  tr<insmittcd  to  me  at  this  place, 
and  1  now  have  the  honor  to  address  you  agreeably  to  his  directions. 

<•  He  is  very  desirous  of  an  amicable  settlement  of  all  the  points  of 
difference  between  Great  Britain  and  the  United  States  on  just  prin- 
ciples. Such  a  settlement,  alone,  would  be  satisfactory  to  the  People 
of  the  United  States,  or  would  command  the  concurrence  of  their  Se- 
nate. In  stating,  in  your  instructions,  the  terms  on  which  the  Presi- 
dent was  willing  that  the  several  questions  pending  between  the  two 
Governments  might  be  arranged,  he  yielded  as  much  to  a  spirit  of 
concession  as  ho  thought  he  could,  consistently  with  the  interests  of 
this  country.  Ue  is,  especially,  not  now  prepared  to  authorize  any 
stipulations  involving  a  cession  of  territory  belonging  to  any  State  in 
the  Union,  or  the  abandonment,  express  or  itnplied,  of  the  right  to 
navigate  the  St  Lawrence,  or  the  surrender  of  any  territory  south  of 
latitude  49,  on  the  Northwest  Coast." 

« III.  The  navigation  of  the  St.  Lawrence.— Both  the  articles,  A 
and  B,  unquestionably  assume  that  the  United  States  have  the  right  to 
the  navigation  of  that  river,  independent  of  Great  Britain.  Nor  can 
the  President  consent  to  any  treaty  by  which  they  should  renounce 
that  right,  expressly  or  by  implication.  If  a  sense  of  justice  should 
not  induce  Great  Britain  to  acknowledge  oujr  right,  some  hope  has 
been  indulged  that  she  might  find  a  motive  to  make  the  acknowledg- 
ment, in  the  power  which  we  possess,  on  her  principles,  of  controlling 
the  navigation  of  the  St.  Lawrence  within  our  limits.  If  she  could  be 
brought  to  consent  to  neither  of  those  articles,  yuw.  instructions  did 
not  look  to  any  other  treaty  stipulations  on  the  subject  of  the  naviga- 
tion of  the  St.  liawrcnce :  and  what  they  say  with  respect  to  practical 
arrangements,  in  other  forms,  was  intended  to  refer  to  separate  acts 
of  the  two  parties.  You  are,  indeed,  authorized  to  take  for  reference 
any  counter  proposals  which  may  bo  made  by  Great  Britain,  because 
it  is  possible  t!'at  some  other  reconciliation  of  the  interests  of  the  two 
Powers,  than  any  which  has  occurred  hc-re,  may  present  itself  to  the 
British  Government ;  and  because,  if  that  were  not  very  likely,  such  a 
reference  would  be  still  due  in  courtesy  to  the  other  party.  Although 
it  is  desirable,  at  present,  for  the  inhabitfints  of  the  United  States,  oil 
the  St.  Lawrence,  to  enjoy  the  liberty  of  tnuling  at  Montreal  and 


[Doc.  No.  48.] 


ii 


<taebec,  in  their  lumber  and  other  articles  of  produce,  charged  with 
no  higher  duties  than  similar  Canadian  commodities,  it  would  be  un^ 
safe  to  assert  that,  at  no  time,  now  or  hereafter*  would  the  right  of 
freely  navigating  the  St.  Lawrence,  with  a  convenient  place  of  depo- 
site,  be  available,  without  the  liberty  of  trading  with  either  of  those 
places.  Such  a  right  would  open  to  our  navigation  a  new  theatre  of 
enterprise,  and  if  the  British  colonial  markets  should  be  shut  against 
us  in  consequence  of  high  duties,  others  equally  advantageous  might 
be  sought  and  found.  If  the  British  Government  should  decline 
agreeing  to  either  of  the  two  articles,  A  and  B,  but  be  williug  to  re- 
ceivp  our  produce  at  Montreal  or  Quebec,  either  free  of  duty,  or  with 
such  reduced  duties  as  might  enable  it  to  sustain  a  competition  with 
Canadian  produce,  two  modes  of  accomplishing  this  object  present 
themselves  :  one  by  treaty,  and  the  other  by  arts  of  separate  regula- 
tion. Between  them,  there  is  no  very  decided  preference.  Tiie  lat- 
ter was  suggested  in  your  instructions  as  being  that  which  would  be 
most  likely  to  be  attainable,  and  because  it  would  not  involve  any 
abandoiiinetit  of  the  rights  of  eitlier  party.  If  it  be  liable  to  the  ob- 
jection tliat  either  party  may,  at  pleasure,  put  an  end  to  it,  the  mu« 
tual  iiilorcst  which^ recommends  its  adoption  would  afford  a  guarantee 
of  its  durability.  But  you  are  authorized  to  consider  your  instruc- 
tions enlarged  so  as  to  comprehend  both  modes  of  effecting  the  object, 
taking  due  care  that,  if  that  by  treaty  should,  in  the  progress  of  tiie 
negotiation,  seem  to  you  best,  the  treaty  stipulation  shall  either  ex- 
pressly reserve  the  right  of  the  United  States  to  the  navigation  of  the 
St  Lawrence,  in  its  whole  extent,  or  at  least  shall  be  so  framed  as  not 
to  be  susceptible  of  the  interpretation  that  they  have  abandoned  that 
right.  It  is  believed  that  the  British  Government  may  be  made  to 
comprehend,  that  the  privilege  of  introducing  the  produce  of  Upper 
Canada,  as  proposed  in  your  instructions,  into  the  United  States,  and 
thereby  securing  the  shorter  and  better  route  through  the  State  of 
New  York,  will  be  an  equivalent  for  that  which  we  desire  in  the  en- 
joyment of  the  markets  of  Montreal  and  Quebec.  With  respect  to 
the  right  to  the  navigation  of  Lake  Michigan,  on  which  you  suppose 
the  British  may  insist,  the  President  can  see  no  legitimate  purpose 
for  which  they  should  desire  it.  It  cannot  be  wanted  by  them,  either 
to  reach  their  own  dominions,  or  those  of  any  foreign  country,  and 
stands,  therefore,  on  other  grounds  than  that  on  which  we  claim  the 
right  to  navigate  the  St.  Lawrence ;  and  tliey  arenot  allowed  to  trade 

«fitl>  4liA  Indiana  oifiiafi>i1  witliin  mil'  ISmSta.       'PliA    aatna  nhaAPvatinna' 


with  the  Indians  situated  within  our  limits, 
are  applicable  to  Lake  Champlain." 


The  same  observations 


Extract  of  a  letter  from  Mr,  OaUatin  to  Mr.  Clay,  dated  London,  Qlst 

September,  182r> 

*'The  Britloh  Pleniiiotentiaries  will  not  entertain  any  proposition 
respecting  the  navigation  of  the  St.  Lawrence,  founded  on  the  right 
claimed  by  the  United  States  to  navigate  that  river  to  the  sea. 


%^* 


02  CDoc.  No.  48.] 

«<  Although  it  nay  prove  hereafter  expedient  to  make  a  temporary 
agi-eement,  without  reference  to  the  right,  (which  I  am  not  authorized 
to  do,)  1  am  satiufied  that,  for  tlie  present,  at  least,  and  whilst  the  in- 
tercourse with  the  British  West  Indies  remains  interdicted,  it  is  best 
to  leave  that  by  land  or  inland  navigation  with  the  North  American 
British  Provinces,  to  be  regulated  by  the  laws  of  each  country,  re* 
spectively.  The  British  Government  will  not,  whilst  the  present 
state  of  things  continues,  throw  any  impediment  in  the  way  of  that 
intercourse,  if  the  United  States  will  permit  it  to  continue." 


)   s 


«Vr.  OaUatin  to  Mr.  Clay, 

LoNDoir,  Ut  October,  18t7. 

Sir  :  I  had,  at  an  early  stage  of  the  negotiations,  ascertained,  not 
only  that  no  arrangement,  founded  on  a  recognition  of  the  right  of  the 
river  ht.  Lawrence  to  the  sea,  was  practicable,  but  that  there  waa 
a  sensibility  on  that  subject  which  rendered  it  preferable  not  to  ap- 
proach it  till  all  others,  and  particularly  that  of  the  Colonial  Inter- 
course, had  been  disposed  of.  It  was,  therefore,  only  after  it  had 
been  distinctly  ascertained,  at  the  interview  of  the  1 3th  instant,  [ulti- 
mo,] with  Mr.  Huskisson  and  Lord  Dudley,  that  there  was  no  chance 
left  of  tlie  intercourse  with  the  British  West  Indies  being  opened,  and 
after  the  principles  of  the  Convention  respecting  the  Northeast  boun- 
dary had  been  substantially  agreed  to,  that  I  brought  forward  the 
question  officially  at  our  conferences.  I  did  it  without  any  hope  of 
succeeding,  but  because  this  negotiation  being  the  continuation  of  that 
of  1 824.  1  apprehended  that  to  omit  altogether  this  subject,  might  bt 
construed  as  an  abandonment  of  the  right  of  the  United  States. 

To  my  first  suggestion,  the  British  Plenipotentiai'ies  replied,  that, 
however  well  disposed  Great  Britain  might  be  to  treat  with  the  Unit- 
ad  States  respecting  tlie  fi*i>e  navigation  of  the  river  St.  Lawrence,  as 
a  question  of  mutual  convenience,  yet  the  views  of  tlio  British  Go- 
vernment hejng  the  same  now  as  they  were  in  1 824,  and  they  being 
prohibited  by  express  instructions  from  entering  into  any  discussion 
respecting  the  free  navigation  of  that  river,  if  claimed  as  heretofore, 
by  the  United  States,  on  the  ground  of  right,  they  could  not  entertain 
any  proposition  to  that  effect,  if  now  maae  by  me. 

It  is  sufficiently  obvious,  that  the  determination  of  the  British 
Plenipotentiaries,  not  t(^  enter  into  any  discussion  of  the  subject,  was 
applicable  to  themselves,  and  conM  not  prevent  my  offering  any  pro- 
position, or  annexing  to  the  Protocol  any  argument  in  the  support  of 
it,  which  I  might  think  praper.  But  it  appeared  to  me  altogether 
unnecessary,  if  not  injurious,  to  commit  my  Government,  by  present- 
ing any  specific  proposal,  with  the  certainty  of  itd  being  rejected ;  or 
to  make  this  Government  commit  itself  still  further,  by  reiterating 
its  positive  refusal  to  treat  on  the  ground  of  a  right  oa  the  part  of  the 


[Doc.  No.  43.] 


38 


United  States.    I  therefore  made  the  entry  which  you  will  see  in  the 
Protocol  ol'tho  20th  conference,  and  which  is  sittUcient  for  th«-  object 
I  had  in  view.     You  had,  by  your  despatch  of  8th  AuguHt,  1826    in 
conformity  with  my  own  wishes,  so  far  enlarged  my  instructions  us 
to  authorize  me  to  judge  which  method  would  be  the  most  eligible  for 
the  purpose  of  obtaining,  at  all  events,  the  admission  of  American 
produce  at  Quebec  or  Montreal,  fiin:  of  duty ;  whether  that  by  treaty* 
or  that  by  acts  of  separate  ioglslation.     The  alternative  was  not  with- 
in my  reach,  as  any  provision  reserving  the  right  of  the  United  States 
to  the  free  navigation  of  the  St.  Lawrence,  either  expretisly,  or  by 
implication,  was,  in  the  present  temper  of  this  Government,  out  of 
the  question.     But,  had  it  been  in  my  power  to  select  the  mode.  I 
would  have  resorted  to  that  suggested  in  the  original  instructions^ 
being  fully  satisfied  that  wo  may,  with  confidence,  rely  on  the  obvious 
interest  of  Great  Britain  to  remove  every  restriction  on  the  expurta* 
tion  of  American  produce  through  Canada,  and  need  not  resort  to 
any  treaty  stipulation  short  of  at  least  a  liberty,  in  perpetuity,  to  nar 
yigate  the  river,  through  its  whole  extent. 

Whatever  motives  may  have  induced  the  measures  which  gave  rise  to 
the  first  complainis  of  our  citizens,  a  different  policy  now  prevails.  In 
consequence  of  the  extension  of  the  warehousing  system  to  the  ports  of 
Quebec,  Montreal,  and  St  John's,  places  of  deposite  are,  in  fact,  al- 
lowed for  every  s^iccics  of  American  produce,  free  of  duty,  in  case  of 
exportation,  which  is  all,  that,  in  that  rcs|iect,  welcould  ask,  as  a  mat- 
ter of  right.  I'he  navigation  between  Montreal  and  Quebec,  either 
to  the  sea,  or  from  the  sea.  has  not  been  granted  ;  and  it  is  precisely 
what  cannot  now  be  obtained  by  a  ti*eaty  stipulation,  without  what 
would  be  tantamoniit  to  a  disclaimer  of  the  right. 

But  I  do  not  think  that,  in  practice,  this  will  be  much  longer  de- 
nied. There  is  certainly  a  dis|H>sitlon,  not  evinced  on  former  occa- 
sions, to  make  the  navigation  free  ;  provided  it  was  -not  asked  as  a 
matter  of  right :  and  generally  to  encourage  the  intercourse  between 
the  United  States  and  the  adjacent  British  Provinces.  This  cliange 
of  disposition  is  undoubtedly  due,  in  part,  to  the  wish  of  obtaining 
supplies  for  the  West  India  Colonies,  whilst  the  intercourse  between 
these  and  the  United  States  remains  interdicted.  But  it  a!io  must 
bo  ascribed  to  more  correct  views  of  what  is  so  clearly  the  interest, 
and  ought  to  be  the  policy,  of  Gi-eat  Britain,  in  that  quarter.  It  is 
certainly  an  extraoi'dinary  circumstance,  that  the  great  importance 
of  the  American  inland  commerce  to  her  own  navigation,  and  to  the 
prosperity  of  Canada,  should  not  have  been  sooner  strongly  felt,  and 
particularly  attended  to ;  that  tlie  obstacles  to  an  intercourse,  by 
which  American  produce  is  exported  through  Q  lebec,  in  preference 
to  the  ports  of  the  United  States,  should  have  arisen  on  the  part  of 
Great  Britain,  and  not  of  the  United  States. 

It  is,  therefore,  to  that  mode  of  attaining  the  object  in  view,  that  I 
have  turned  my  attention.  The  considerations  which  recommend  the 
policy  of  removing,  by  their  own  acts,  the  practical  inconvenience* 
which  still  embarrass  the  intercourse,  liave  heen  stated,  generally^  to 

5 


.(  f  '1 


')  1 

J 


■•■\.f" 


r*!:'*  lO—il  ■— L..I ..  .tT'tlk 


'«^%i«^;.#* 


'  '^  anortwr..^ 


/ 


(_Uoc.  No.  48.] 

tlio  British  I'iPiiipotcntiarics,  but  witli  more  Turce,  and  more  in  de- 
tail to  Lord  Dudlcy«  and  to  otiic;r  members  of  tlio  cnbinot.  In  an  in- 
terview I  iiad  to-ilay  with  his  Lunlship,  nt'tcr  having  cxpri'ssed  my 
rrgi'ct  that  no  arrnngcment  rouM,  at  thin  time,  he  made  tm  tliat  siil)ject. 
and  after  having  urged  the  other  i-easons  wliicli  should  induce  Great 
Britain  no  longer  to  pi-cvont  the  navigation  of  the  American  raft, 
boats,  and  vessels,  between  Montreal  and  Quebec  ;  tliat,  if  she  persis- 
ted in  denying  it,  although  I  had  no  authority  to  say  sucli  was  the  in- 
tention of  my  Government,  yet  it  seemed  a  natural  ron^.vqnenre,  and 
ought  not  to  be  considered  as  giving  offence,  that  the  l^ttited  States 
should  adopt  correspimding  measures  in  regard  to  tlie  tiavigation  of 
the  river  St.  Lawi-ence,  within  their  own  limits.  Lord  Diidlcy,  who 
had  appeared  to  acquiesce  in  my  general  remarks,  made  no  observa- 
tion on  the  last  suggestion. 

But,  what  is  somewliat  remarkable  is,  that  he,  and  several  of  the 
otiier  Ministers  with  wlioni  I  liave  conversed,  have  expressed  a  doubt 
whether  I  was  not  mistaken  in  asserting  that  the  navigation  of  the 
river  was  interdicted  to  our  boatf)  between  Montreal  and  Quebec. 

Upon  tlie  whole,  I  have  great  hopes  tii,  t  setting  aside  the  abstract 
question  of  right,  and  though  no  arrangement,  by  treaty,  shouhl  take 

Slacc.  our  citizens  will,  ere  long,  and  through  the  acts  of  Great 
Iritain  alone,  enjoy  all  the  beneiits  of  the  navigation   which  tliey 
could  obtain,  even  if  the  right  were  recognized.     Siiould  this  expec- 
tation be  disappointed,  it  is  probable  tliat  a  sulliciciit  remedy  will  be 
found  in  the  power  to  retaliate  above  St.  Ucgis. 
1  have  the  honor  to  be«  &c. 

ALBKRT  GALLATIN. 
Hon.  Henry  Ci.at, 

Secretary  of  State,  irasltington. 


(U.) 

^meriain  paper  on  the  J^'avigationofthe  St.  Lawrence,  (18///  Vrutacol.) 

The  piglit  of  the  People  of  the  United  States  to  navigate  the  river- 
St  Lawrence,  to  and  from  the  si'a,  has  never  yet  been  discussed  between 
the  Governments  of  tiie  United  States  and  Great  Britain.  If  it  has 
not  been  distinctly  asserted  by  tlie  former,  in  negotiation,  hitherto, 
it  is  because  the  benefits  of  it  have  been  tacitly  enjoyed,  and  because 
the  interest,  now  become  so  great,  and  daily  acquiring  fresh  magni- 
tude, has,  it  may  almost  be  said,  originated  since  the  acknowledg- 
ment of  tlie  independence  of  the  United  States,  in  1783.  This  river 
is  the  only  outlet  provided  by  nature  for  the  inhabitants  of  several 
among  the  largest  and  most  jiopulous  States  of  the  American  Union. 
Their  right  to  use  it,  as  a  medium  of  communication  with  the  ocean, 
rests  upon  the  same  ground  of  natural  right  and  obvious  necessity 
heretufoi>e  asserted  by  the  Government  in  behalf  of  the  people  of  other 


[Doc.  No.  43.] 


II 


poi'tiuiiH  ul'  tlio  United  States,  in  relation  to  the  i-iver  Mississij)])!.  It 
iias  Nonietinies  been  said,  tliat  tlic  posscHsioh  by  one  nation  of  both  the 
NJiorcs  of  a  river  at  its  moutli,  given  tlie  right  of  obtitnicting  the  na< 
vigation  of  it  to  the  peojile  or  other  nations  living  on  the  banks  above; 
but  it  remains  to  be  shown  upon  what  satisractory  grounds  the  as- 
sumption by  the  nation  below  or  exclusive  jurisdiction  over  a  river, 
thus  situated,  <-an  be  placed.  The  common  right  to  navigate  it,  is,  on 
the  utiier  hand,  a  right  of  nature.  This  is  a  principle  w  hich,  it  is  con- 
ceived, will  be  found  to  have  the  sanction  of  the  must  revered  authori- 
ties of  ancient  and  modern  times ;  and,  if  thcfe  have  been  temporary 
occasions  when  it  has  been  questioned,  it  is  not  known  that  the  rea- 
sons upon  which  it  rests,  as  dcv(«loped  in  the  most  approved  works 
upon  public  law,  have  ever  been  inijiugned.  As  a  general  principle, 
it  stands  unshaken.  The  dispute  relative  to  the  Sclu'ldt,  in  1784.  is, 
perhaps,  the  occasion  when  the  argument  ilrawn  from  natural  right 
was  must  attempted  to  be  impeached.  Here  tlio  circumstances  were 
altogether  peculiar.  Amongst  others,  it  is  known  to  have  been  al- 
leged by  the  Dutch,  that  the  whole  course  of  the  two  branches  of  this 
I'iver,  which  passed  within  the  dominions  of  Holland,  was  entirely  ar* 
tificial ;  that  it  owed  its  existence  to  the  skill  and  labor  of  Dutchmen  ; 
tiiat  its  banks  had  been  reared  up  at  immense  cost>  and  were  in  like 
manner  maintained.  Hence,  probably,  the  motive  for  that  stipula- 
tion in  the  treaty  of  Monster,  wliicli  had  continued  for  more  than  a 
century,  that  the  lower  Scheldt,  with  the  canals  of  Sns  and  Swin,  and 
otiicr  mouths  ttf  the  sea  htu'dering  upon  them,  should  be  kept  closed  on 
the  side  belonging  to  the  States,  lint  the  case  of  the  St.  Lawi*cnco 
is  totally  dilierent.  Special,  also,  as  seemed  the  grounds  which  the 
Dutch  took  as  against  the  Emperoi*  of  Germany,  in  this  case  of  the 
Scheldt,  and,  althougli  they  also  stood  upon  a  specific  and  positive 
compact,  of  long  duration,  it  is.  nevertheless,  known  that  the  public 
voice  of  Europe,  on  this  part  of  the  dispute,  preponderated  against 
them.  It  may  well  have  done  so,  since  there  is  no  sentiment  more 
deeply  and  universally  felt  than  that  the  ocean  is  free  to  uU  men,  and 
the  waters  that  How  into  it,  to  those  whose  home  is  upon  their  shores. 
In  nearly  every  part  of  tlie  world  we  find  this  natural  right  acknow- 
ledged, by  laying  navigable  rivers  open  to  all  tiie  inhabitants  of  their 
banks  ;  and,  wherever  the  stream,  entering  the  limits  of  another  so- 
ciety or  nation,  has  been  interdicted  to  the  upper  iidiabitants,  it  has 
been  an  act  of  farce  by  a  sti-onger  against  a  weaker  party,  and  con- 
demned by  tiic  judgment  of  mankind.  The  right  of  the  npiwr  inha- 
bitants to  the  full  use  of  tlie  stream,  rests  upim  the  same  imperious 
wants  as  that  of  the  lowei- ;  u\m\  the  same  intrinsic  necessity  of  par- 
tici|iating  in  tlie  benefits  of  this  flowing  element.  Rivers  were  given 
for  the  use  of  all  persons  living  in  the  country  of  which  they  niakc  a 
pai-t,  and  a  primary  use  of  navigable  ones  is  that  of  external  commerce. 
The  public  good  of  nations  is  the  object  of  the  law  of  nations,  as  that  of 
individuals  is  of  municipal  law.  Ti>e  interest  of  a  part  gives  way  to  that 
of  the  whole ;  the  particular  to  the  general.  The  former  is  subordinate ; 
the  latter  paramount.  .  This  is  the  principle  pervading  every  code, 


i 


»  M 


:?=r.-Ss5r3:4 f«s^c^; 


1 


y-i 


It: 


'■•  V 


86 


[Doc.  No.  48.] 


nati(mat  or  municipal,  whose  haniH  in  laid  in  moral  right,  and  ulicso 
aim  is  tlit*  uniterNal  good.      All  (hat  run  be  ic(|uir(Ml  under  a  priMci- 
ple  HO  incontcfltible,  ho  wIhc.    and,  in  itH  permanent  rentilts  upon  the 
great  raliHr  of  human  society,  no  bcncticent,  ia,   that    rcasonabie 
coinpenNatioti  be  made  whenever  the  general  good  calh  lor  partial 
BarriiiceN,  whether  from  individuals  in  a  local  Jiii-isdiction,  or  from 
one  nation  considered  as  an  integral  part  of  tlio  family  of  nations. 
This  is  accordingly  done  in  the  ciiNe  of  roads,  and  the  right  of  way, 
in  single  communities ;  and  is  admitted  to  bo  Just,  in  the  form  of 
moderate  tolls,  where  a  foi-eign  passage  takes  place  through  a  natu- 
ral current,   kept  in  repair  by  tlie  nation  holding  its  sliores  below. 
The  latter  predicament  is  not  supposed  to  ho  that  of  the  St.  Lawrence 
at  this  day,  since  it  is  not  known  that  any  artificial  cimstructions, 
looking  simply  to  its  navigation,  have  yet  been  employed,  cither  upon 
its  banks,  or  in  kee|iing  the  channel  clear.     I'his  has  been  the  case, 
in  connexion  with  other  facMities  and  protection  aflfordcd  to  naviga- 
tion, with  the  Elbe,  the  IVlHcse.   the  VVesei-,  the  Oder,  and  various 
other  rivers  of  Europe  that  might  be  nuuied  ;    and  the  inciih'ntal 
riglit  of  toll  has  followed.     It  may  be  mentioned,  however,  as  a  fact, 
under  hi»i  iicad,  tliat  the  prevailing  disposition  of  Eui'o{ie  defeated  an 
attempt,  once  made  by  lienmark,  to  exact  a  toll  at  the  mouth  of  the 
Elbe,  by  means  of  a  fort  on  the  licdstcin  side,  which  commanded  it. 
The  Sound  dues  have  l>een  admitted  in  favor  of  Uenmark,  but  not 
always  without  scrutiny.  an<i  only  under  well  established  rules.     \Vc 
know  thai,  under  some  circumstances,  and  with  due  ]»recautions,  a 
riglit  is  even  allowed  to  armies  to  pass  through   a  neutral  territory 
for  the  destructive  purposes  of  war.     How  much  stronger,  and  more 
unqualified  the  right  :o  seek  a  passage  through  a  natural  stream,  for 
tlic  useful  and  innocent  pur]M)ses  of  commerce  and  'subsistence  !     A 
mo^t  authentic  and  unequivocal  confirmation  of  this  doctrine,   has 
been  afl'orded,  at  a  recent  epoch,  by  tlie  parties  to  the  European  alli- 
ance, and  largely,  as  is  believed,  through  the  enliglitencd  instrumen. 
tality  of  Great  Britain,  at  the  negotiation  of  the  treaties  ut  the 
Congress  of  Vienna.     It  lias  been  stipulated  in  these  treaties,  that 
the  Koine,  the  Ncckcr,  the  Mayne,  the  Moselle,  the  Maesc,  and  the 
Scheldt,  are  to  be  free  to  all  nations.     'I'iic  object  of  these  stipula- 
tions undoubtedly  has  been,  to  lay  the  navigation  of  these  rivers 
effectively  open  tu  all  the  i)eo])Ie  dwelling  upon  their  banks,  or  with- 
in their  neighborhood,  and  to  abolisli  those  unnatural  and  unjust 
restrictions  by  which  the  inhabitants  of  the  interior  of  Germany  have 
been  too  often  deprived  of  their  outlet  to  the  sea,  by  an  abuse  of  that 
sovereignty,  rather  than  its  right,  which  would  impute  an  exclusive 
dominion  over  a  river  to  any  one  State  not  holding  all  its  shores. 
These  stipulations  may  be  considered  as  an  indication  of  the  pi-esent 
judgment  of  Europe  ujion  the  |ioint,  and  would  seem  to  8uj)ersede 
further  reference  to  the  case  of  other  rivers,  and,  from  their  recent, 
as  well  as  high  autliority,  further  illustration  of  any  kind.    They 
imply  a  substantial  recognition  of  the  principle,  that,  whatever  may 
sometimes  have  been  the  claim  to  an  exclusive  right  by  one  nation 


^ 


V 


I' 


«...    -  Vf*^' 


a  iiriiicU 
upon  the 
tuNonabie 
•I'  partial 
or  from 
nationH. 
of  way, 
form  of 
a  natu* 
[es  below, 
lawrence 
Iructinns, 
her  upon 
the  rase, 
)  naviga. 
[|  various 
nciderital 
IS  a  fact, 
featcd  an 
th  of  the 
anded  it. 
but  not 
Ics.     We 
utinns,  a 
[territory 
iind  inoi*Q 
•earn,  for 
ncc  !    A 
'ine,   has 
lean  alii- 
!)trumen> 
a  ut  the 
ies,  tiiat 
and  the 
stipula- 
»c  rivers 
)r  with- 
1  unjust 
ny  have 
of  that 
(elusive 
shores. 
]>resent 
|)erscde 
recent, 
They 
er  may 
nation 


[Doc.  No.  48. J  89^ 

over  a  river,  under  the  rirnimNtances  in  question,  the  cluini,  if  found- 
ed ill  Hii  alleged  right  of  sovereignty,  coufd,  at  best,  oiil^  be  supjHwed 
to  Kpi-ing  from  the  scn-ial  compact  :  whereas  the  right  of  naviga* 
ing  the  river,  is  a  riglit  of  nature,  prc-existent  in  point  of  time,  not 
necessary  to  have  been  surrendered  u|i  for  any  purpose  of  the  com- 
mon good,  and  unsusceptible  of  annihilation.  Thci-e  is  no  principle 
of  national  law,  and  univeraul  justice,  upon  which  the  provislotis  of 
the  V  ienna  treaties  are  founded,  that  docs  not  apply  to  sustain  the 
ri^htof  the  People  of  the  United  States  to  navigutu  the  St.  Lawrence. 
The  relations  between  the  soil  and  the  water,  and  those  of  man  to 
both,  form  the  eternal  basis  of  this  right.  These  relations  are  too 
intimate  and  powerful  to  be  separated.  A  nation  deprived  of  the 
use  of  the  water  flowing  tlirough  its  soil,  would  sec  itself  strip|>cd 
of  many  of  the  most  beneflciul  uses  of  the  soil  itself ;  so  that  its  riglit 
to  use  the  water,  and  fi-eely  to  pass  over  it,  becomes  an  indis|)cnsablo 
adjunct  to  its  territorial  rights.  It  is  a  means  so  interwoven  with 
the  end,  that  to  disjoin  them  would  bo  to  destroy  the  end.  \Vhy 
should  the  water  impart  its  fertility  to  the  earth,  if  the  products  of 
of  the  latter  are  to  be  left  to  jierisli  upon  tlie  shores  ? 

It  may  be  projier  to  advert  to  the  footing,  in  |H)int  of  fact,  ii|)on 
which  the  navigation  of  this  river  stands,  at  present,  between  the  two 
countries,  so  far  as  the  regulations  of  Great  Britain  are  concerned. 
The  act  of  Parliament,  of  the  Sd  of  Geo.  IV,  chapter  119,  August 
5,  1 822,  has  |K;rinitted  the  importation  from  the  United  States,  by 
land,  or  water,  into  any  port  of  entry  in  cither  of  the  Canadas,  at 
which  there  is  a  customhouse,  of  certain  articles  of  the  United  States, 
enumeratid  in  a  schedule,  subject  to  the  duties  which  arc  specified  in 
another  schedule.  Under  the  former  schedule,  many  of  the  most  im- 
portant articles  of  the  United  Slates  are  excluded ;  and,  under  the 
latter,  the  duties  arc  so  high  as  to  be  equivalent  to  a  prohibition  of 
some  that  are  nominally  admitted.  The  foregoing  act  lays  no  impo- 
sitions on  the  .merchandise  of  the  United  States  descending  the  St. 
Lawrence  with  a  view  to  exportation  on  the  ocean  ;  but  an  act  of  Par- 
liament of  1821  docs,  viz,  :  uimn  the  timber  and  lumber  of  the  United 
States.  Such,  in  general  terms,  is  the  footing  upon  wiiicli  the  inter- 
course is  placed  bv  the  British  acts,  ;>nd  it  may  be  alike  proper,  in 
connexion  with  this  reference  to  ii,  to  mention  the  conditions  of  in- 
tercourse which  it  has  superseded.  To  whatever  observations  the 
duties  imposed  on  the  products  of  the  United  States,  imported  for  sale 
into  the  ports  of  Canada,  may  otherwise  be  liable,  as  well  as  the  ex- 
clusion of  some  of  them  altogether,  it  will  be  understood  that  it  is 
only  the  unobstructed  passage  of  the  river,  considered  as  a  common 
highway,  that  is  claimed  as  a  right.  By  the  ti-eaty  stipulations  of 
November,  1794,  between  the  two  countries,  the  United  States  were 
allowed  to  import  into  the  two  Canadas  all  articles  of  merchandise, 
the  importation  of  which  was  not  entirely  prohibited,  subject  to  no 
other  duties  than  were  payable  ty  British  subjects  on  the  importa- 
tion of  the  same  articles  from  Europe  into  the  Canadas.  The  same 
latitude  of  importation  was  allowed  into  the  United  States  from  the 


1 


I 


!       il 


0 


.■V     ^  ^-H^.-*UWjM.  <'«f^ >♦ 


38 


[Doc.  No.  48.] 


U  • 


I 


1/      » 


t 


Canadas,  subject  to  no  other  duties  than  were  payable  on  tlie  impui- 
tation  of  Mic  same  ai-ticles  into  the  Atlantic  ports  of  tlie  United  Statrs. 
Peltries  wei-e  made  free  on  both  sides.  All  tolls  and  rates  of  ferriage 
\\ere  to  be  the  same  upon  the  inhabitants  of  both  countries.  No 
transit  duties  at  portages,  or  carrying  ;;laces,  were  to  be  levied  on 
eitlier  side.  'I'liese  provisions  were  declared,  in  the  treaty,  to  be  de- 
signed tn  secure,  to  both  parties,  the  local  advantages  common  to 
butli,  and  to  promote  a  disposition  favorable  to  fricndsiiip  and  good 
ncigli  1)01  hood.  Tlie  waters  on  each  side  were  made  free,  with  the  ex- 
ception, reciprocally,  at  that  time,  of  vessels  of  the  United  States 
going  to  the  seapnits  of  the  British  territories,  or  navigating  their 
rivers  between  their  mouths  and  the  highest  jmrt  of  entry  from  the 
sea  ;  and  of  British  vessels  navigating  the  rivers  of  the  United  States 
beyond  the  highest  ports  of  entry  from  the  sea.  These  treaty  regu- 
lations ai-e  lound  among  the  articles  declared,  when  the  instrument 
wiis  made,  to  be  |)ermanent.  Both  countries  continued  to  abide  by 
tlifui,  until  Great  Britain  passed  the  acts  above  recited,  by  which  it 
appears  that  she  has  considered  the  intervening  war  of  1812,  as  ab- 
rogating the  whole  of  the  treaty  of  November,  1794.  The  United 
States  have  continued  to  allow,  up  to  the  prescnt.time,  its  iirovisiuns, 
regulating  this  intercourse,  to  oiierate  in  favor  of  the  Canadas.  By 
the  act  of  Parliament,  of  the  3d  of  George  IV,  ciiapter  44,  taken  in 
conjunction  with  the  act  of  the  same  year,  chapter  1 1 9,  above  men- 
tioned, the  right  of  the  vessels  of  the  United  States  to  the  whole  na- 
vigation of  the  St.  Lawrence  appears  to  be  taken  for  granted  :  by  the 
first,  from  the  ocean  tn  Quebec  ;  and,  by  the  second,  from  any  part  of 
the  tcritoiries  of  the  United  States  to  Quebec.  But  a  discretionary 
power  is  given  to  the  Colonial  Governments  in  ('anada,  to  do  away 
the  effect  of  the  latter  permission,  by  excepting  any  of  the  Canadian 
posts  from  those  to  which  the  vessels  of  the  United  States  arc,  by 
tiie  act,  made  admissible ;  whilst  the  duties  which  it  imposes  upon 
such  of  the  exports  of  tlie  United  States  as  could  alone  render  the 
trade  profitable,  are  prohibitory.  But  it  is  the  right  of  navigating 
this  river  upon  a  basis  of  certainty,  without  obstruction  or  hindrance 
of  any  kitiii,  or  <hc  hazard  of  it  in  future,  that  the  United  States 
claim  for  their  citizens. 

The  importance  of  this  claim  may  be  estimated  when  it  is  consider- 
ed that  the  people  of  at  least  as  many  of  the  States  as  Illinois,  Indi- 
ana, Ohio,  Pennsylvania,  New  York,  Vermont,  Maine,  ami  New 
Hampshire,  and  the  Territory  of  Michigan,  have  an  immediate  inter- 
est in  it,  not  to  dwell  union  the  prosjiective.  <lerivative  interest  which 
is  attached  to  it  in  other  portions  of  the  Union.  The  parts  of  the 
United  States  connected,  directly  or  remotely,  with  this  river,  and 
the  inland  seas  through  which  it  communicates  with  the  ocean,  form, 
indeed,  an  extent  of  territory,  and  comprise,  even  at  this  day,  an  ag- 
gregate of  population,  which  bespeak  the  interest  at  stake  to  be  of  the 
very  highest  nature,  and  one  which,  after  every  deduction  suggested 
by  the  artificial  channels  which  may  be  substituted  for  the  natural  one 
of  this  great  stream,  make  it,  emphatically,  an  object  of  national  con- 


\    I 


!i, 


'  \ 


[Doc.  No.  48.] 


39 


the  imjwr- 
itcd  Statps. 
of  ferriage 
tries.  No 
B  levied  on 

to  be  de- 
ominon  to 

and  good 

itii  the  ex- 
ti'd  States 
»ting  their 
'  from  the 
ted  States 
!at>  regii- 
istruiiient 
)  abide  by 
Y  which  it 
12,  as  ab- 
lie  Uiiifcd 
ivjvisioiis, 
<las.     By 
.  taken  in 
ove  mcn- 
rt  hole  na- 
I:  by  the 
\y  part  of 
rctionary 
do  away 
L'anadian 
9  arc,  by 
ses  upon 
nder  the 
vigating 
iiidrancc 
il  States 

onsidcr- 
is,  fndi- 
lid  New 
te  inter- 
t  which 
1  of  the 
er,  and 
I,  form, 
>  an  ag- 
e  of  the 
;gested 
iral  one 
al  con- 


cernment and  attention.     Having  seen  the  grounds  of  necessity  and 
reason  upon  which  the  right  of  so  great  and  growing  a  population,  to 
,  seek  its  only  natural  patli-way  to  the  ocean,  rests,  it  may  be  expected 
that  they  should  be  supported  by  the  established  principles  oF  interna- 
tional law.     This  shall  be  done  by  the  citation  of  passages  from  the 
writings  of  the  most  eminent  publicists,  always  bearing  in  mind  that 
the  right,  under  discussion,  becomes  strong  in  proportion  to  the  ex- 
tent which  the  country  of  the  upper  inhabitants,  in  its  connexion  with 
the  stream,  bears  to  the  country  of  the  lower  inhabitants.    A'^attel, 
in  book  2,  ch.  9, sec.  127,  lays  down  the  following  as  a  general  position: 
'*  Nature,  who  designs  her  gifts  for  the  common  advantage  of  men, 
«  does  not  allow  of  their  being  kept  from  their  use,  when  they  can  be 
'<  furnished  with  tlicm,  without  any  prejudice  to  the  proprietor,  and  by 
"  leaving  still  untouched  all  the  utility  and  advantages  he  is  capable 
«of  receiving  from  his  rights."  The  same  autiior,  same  book,  ch.  10, 
sec.  132,  says,  "  Property  cannot  deprive  nations  of  tlic  general  right 
"of  travelling  over  the  earth,  in  order  to  have  a  communication  with 
*'  each  other,  for  carrying  on  trade  and  other  just  reasons.  Tlic  mas- 
**  ter  of  a  country  may  only  refuse  the  passage  on  particular  occasions, 
'•  where  he  finds  it  is  prejudicial  or  dangerous."    In  sec.  1 34.  he  adds, 
"  A  passage  ought,  also,  to  be  granted  for  mercliandise,  and  as  this 
"  may,  in  common,  be  done  without  inconvenience,  to  rofiisc  it,  with- 
"  out  just  reason,  is  injui-ing  a  nation,  and  endeavoring  to  deprive  it 
"of  the  means  of  carrying  on  a  trade  with  other  States  ;  if  the  pas- 
•'  sage  occasion  any  inconvenience,  any  expense  for  the  preservation 
*•  of  canals  and  highways,  it  may  be  recompensed  by  the  rights  of 
"  toll."  Again,  in  bonk  ],  ch.  22,  sec.  266,  we  are  told,  that,  if  '•  nei- 
"  ther  the  one  nor  the  other  of  two  nations,  near  a  river,  can  prove 
"  that  it  settled  first,  it  is  to  be  supposed  that  they  botli  came  there  at 
"  the  same  time,  since  neither  can  give  any  reason  of  preference;  and, 
*'  in  this  case,  the  dominion  of  each  will  be  exteinlcd  to  the  middle  of 
"  the  river."    This  is  a  principle  too  relevant  to  the  doctritie  under 
consideration  to  be  passed  over  without  remark.     It  relates,  as  will 
be  seen,  to  dominion,  and  not  to  right  of  passage  simply.     Nt:w,  if 
simultaneous   settlement  confers  cocquality  of  dominiini,    by  even 
stronger    reason    will   simultaneous    acquisition    confer  coequality 
of  passage.     Without  inquiring  into  the  state  of  the  navigation  of 
the   St.  Lawrence  as  between    Great  Britain    and   France,  prior 
to  the  peace  of  1763,  it  is  sufHcient  that,  in  the  w.ir  of   175G-G3, 
which  preceded  that  Peace,  the  people  of  the  United  States,  in  their 
capacity  of  English  subjects,  contributed,  jointly  with  the  parent 
State,  (and  largely,  it  may  be  added,  with  historical  truth,)  towards 
gaining  the  Canadas  from  France.    The  right  of  passage,  therefore, 
of  this  river,  admitting  that  it  did  nut  exist  before,  was,  in  point  of 
fact,  o|)cned  to  the  early  inhabitants  of  New  York  atid  Pennsylvania, 
at  an  epoch  at  least  as  soon  as  to  British  subjects  living,  afterwards, 
in  the  newly  conquered  possessions.    A  title  thus  derived,  is  not  in- 
voked as  resting  upon  the  same  ground  with  the  title  derived  from 
niitnral  right :  but  it  serves  to  strengthen  it,  and  is  of  pertinent  ap- 


-%  - 


40 


fDoc.  No.  43.] 


:J    h 


lit 


^■A 


plication,  .IS  against  Great  Britain,  in  this  instance.   Let  it  be  looked 
at  under  eitlier  of  the  following  alternatives  which  present  them- 
selves.    If  Great  Britain  possessed  the  navigation  of  tiiis  river  prior 
to  1763,  so  did  the  People  of  the  United  States,  as  part,  at  that  time, 
of  her  own  empire.     If  she  did  not,  but  only  first  acqtiirisd  it  when 
the  Canadas  wci-c  acquired,  the  People  of  tlie  United  States,  acting  in 
common  with  her,  ac<|uired  it  in  common,  and  at  as  early  a  date.     It 
will  not  be  said  that  the  right  which  necessarily  inured  to  the  colo- 
nies, as  part  of  the  British  empire,  was  lost  by  their  subsequently 
taking  tlio  character  of  a  distinct  nation ;  since  it  is  the  purpose  of 
this  paiier  to  show  that  the  right  of  passage  may,  as  a  natural  right, 
be  claimed  by  one  foreign  nation  against  another,  without  any  refer- 
ence whatever  to  antecedent  circumstances.     But  the  latter,  when 
they.^ist,  make  up  part  of  the  case,  and  are  not  to  be  left  out  of 
view.    I'hc  peculiar  and  common  origin  of  the  title  of  both  parties, 
as  seen  above,  is  calculated  to  illustrate  more  fully  the  principle  of 
comnjon  right,  applicable  to  both  now.    The  antecedent  circumstances 
show  that  the  natural  right  always  appertaining  to  the  early  inhabi- 
tants of  the  shores  of  this  river,  above  the  Canadian  line,  to  navigate 
it,  has  oucc  been  fortified  by  joint  conquest,  and  by  subsequent  joint 
usufruction.     One  other  quotation  is  all  that  will  be  given  from  the 
same  author.     It  relates  to  a  strait,  and  not  a  river ;  but  the  reason- 
ing from  analogy  is  not  the  less  striking  and  appropriate.     *•  It  must 
be  remarked,"  he  says,  **  with  regard  to  straits,  that,  when  they 
serve  for  a  communication  between  two  seas,  the  navigation  of  which 
is  common  to  all  or  many  nations,  he  who  possesses  the  strait  cannot 
refuse  others  a  passage  through  it,  provided  that  passage  be  innocent, 
and  attended  with  no  danger  to  tlie  State.     Such  a  refusal,  without 
just  reason,  would  deprive  these  nations  of  an  advantage  granted 
them  by  nature ;  and,  indeed,  the  right  of  such  a  passage  is  a  n^main- 
der  of  tlie  primitive  liberty  enjoyed  in  common."     If  we  consult  Gro- 
tius,  we  shall  find  that  he  is  equally,  or  more,  explicit  in  sanctioning, 
in  tlie  largest  extent,  the  pi-inciple  contended  for.     He  e\en  goes  so 
far  as  to  say,  after  laying  down  generally  the  right  of  passage,  that 
«the  fears  which  any  Power  entertains  of  a  multitude  in  arms,  pass- 
ing through  its  territories,  do  not  form  such  an  exception  as  can  do 
away  the  rule ;  it  not  being  proper  or  reasonable  that  the  fears  of  one 

1)arty  should  destroy  the  rights  of  another."  Book  2,  chap.  2,  sec.  13. 
[n  t!:c  course  of  the  same  section  he  declares.  tlt<it  upon  "  this  foun- 
dation of  common  right,  a  free  passage  through  countric.'<.  rivers,  or 
over  any  part  of  the  sea,  M'hich  belong  to  some  particular  People, 
ought  to  bo  allowed  tu  those  who  requiiv.  it,  for  the  necessary  occa- 
sions of  life,  whether  those  occasions  be  in  quest  of  settlements,  after 
being  driven  from  their  own  country,  or  to  trade  with  a  remote  nation." 
The  i*easons  which  Grotius  himself  gives,  oc  which  he  adopts  from 
writers  more  ancient,  for  this  right  of  innocent  passage,  (and  he  is 
full  of  authorities  and  examples,  as  well  from  sacred  as  profane  his- 
tory,) are  of  peculiar  forcc^  He  denominates  it  a  *'arigtit  intei'V.'o- 
Ten  -with  tlie  very  frame  of  human  society."    "  Property,"  ho  says. 


n 


k 


V 


T /■"«"■  ltd  All 


*"■*» «-- ^^!rf:/*,;.j»*~ii: 


be  looked 
'lit  them, 
vep  prior 
that  time, 
"  it  when 
acting  in 
Idate.     It 
the  colO' 
lequently 
jurpose  of 
al  right, 
Iny  reler- 
Vf  wlien 
[eft  out  of 
parties, 
ncipic  of 
mstaiicos 
y  inhabi- 
navigate 
5iit  joint 
fi'om  the 
5  reason. 
It  must 
iicn  they 
|of  which 
It  cannot 
Innocent, 
>  without 
granted 
remain, 
ult  Gro. 
ilioning, 
goes  so 
gc.  that 
IS,  pass* 
i  can  do 
s  of  one 
si'c.  13. 
is  foun- 
eers,  or 
I'cople, 
y  orca- 
s,  after 
atioii." 
s  from 
d  he  is 
ne  his. 
terrco' 
I  says, 


[poc.  No.  43.] 


4i 


'♦was  originally  introduced  with  a  reservation  of  that  use  which 
miglit  be  of  general  benefit,  and  not  prejudicial  to  the  interest  of  the 
owner."  lie  concludes  the  section  in  the  following  manner:  <'A 
free  passage  ought  to  be  allowed,  not  only  to  persons,  but  to  merchan- 
dise :  for  no  Power  has  a  right  to  prevent  one  nation  trading  with 
another  at  a  i*eniotc  distance  ;  a  pennission  which,  for  the  interest  of 
society,  should  be  maintained  ;  nor  can  it  be  said  that  any  one  is  in- 
jumi  by  it :  for,  though  lie  may  thereby  bo  deprived  of  an  exclusive 
gain,  yet  the  loss  of  what  is  not  his  due,^as  a  matter  oj right,  can  ne- 
ver be  considered  as  a  damage,  or  the  vicdation  of  a  claim."  After 
authorities  of  such  immediate  bearing  on  the  point  under  considcra. 
tiou,  further  quotation  will  be  forborne.  The  question  of  right  is 
conceived  to  be  made  out,  and  if  its  denomination  will  be  foun<l  t'»  be 
sometimes  th.it  of  an  imperfect,  in  contradistinction  to  an  absolute 
right,  the  denial  of  it  js,  nevertheless,  agreed  to  be  an  injury,  of 
which  the  paKy  deprived  may  justly  complain.  The  sentiments  ta- 
ken from  these  two  writers,  and  they  are  not  the  only  ones  capable 
of  being  adduced,  (though  deemed  sufficient,)  have  the  full  support  of 
coincident  passages  in  Pufiendorf,  book  3,  cliap.  3,  sec.  4,  5,  6,  and 
in  Wolfius,  sec.  310. 

Finally  :  the  United  States  fee]  justified  in  claiming  the  navigation 
of  this  river,  on  the  ground  of  paramount  interest  and  necessity  to 
their  citizens~.on  that  of  luitural  right,  founded  on  this  necessity, 
and  felt  and  acknowledged  in  the  practice  of  mankind,  and  under 
the  sanction  of  the  best  expounders  of  the  laws  of  nations.  Their 
claim  is  to  its  full  and  free  navigation  from  its  source  to  the  sea, 
without  impedimciit  or  obstruction  of  any  kind.  It  was  thus  that 
Great  Britain  claimed,  and  had,  the  navigation  of  the  Mississippi,  by 
the  seventh  article  of  the  treaty  of  Paris,  of  1763,  when  the  month 
and  lower  shores  of  that  river  were  held  "y  another  Power.  The 
claim,  whilst  necessary  to  the  United  States,  is  not  injurious  to  Great 
Britain,  nor  can  it  violate  any  of  her  just  rights.  They  confidently 
appeal  to  her  justice  for  its  enjoyment  and  security ;  to  her  enligh^ 
ened  sense  of  good  neighborhood ;  to  her  past  claims  upon  others  for 
the  enjoyment  of  a  similar  right;  and  to  her  presumed  desire  for  the 
advantageous  intercourse  of  trade,  and  all  good  offices,  now  and 
henceforth,  between  the  citizens  of  the  United  States  and  her  own 
subjects  bordering  upon  each  other  in  that  portion  of  her  dominions. 


N. 

British  paper  on  the  Navigation  of  the  St.  Lawrence — iAth  Protocol. 

The  claim  of  the  United  States  U  ihe  free  navigation  of  the  river 
St.  Lawrence  wears  a  character  of  peculiar  importance  when  urged  as 
an  inde[)endent  right. 
6 


\ 


1    I 


m 


«^, 


^j$- 


[Doc.  No.  43.] 


U 


n. 


The  American  Plenipotentiary  must  be  aware  that  a  demand,  rest- 
ed upon  this  principle,  necessarily  precludes  those  considerations  of 
good  neighborhood  and  mutual  accommodation,  with  which  the  Go- 
vernment of  Oreat  Britain  would  otherwise  h(>  e  been  anxious  to  en* 
ter  upon  the  adjustment  of  this  part  of  the  negotiation. 

A  I'ight  claimed  without  qualification  on  the  one  side,  affords  no 
room  for  friendly  concession  on  the  other :  total  admission,  or  total 
rejection,  is  the  onl^  alternative  which  it  presents. 

On  looking  to  the  objects  embraced  by  the  American  claim,  we 
find  them  to  be  of  no  ordinary  magnitude.  The  United  States  pre- 
tend to  no  less  than  the  perpetual  enjoyment  of  a  free,  uninterrupted 
passage,  independent  of  the  territorial  sovereign,  through  a  large  and 

ry  im|iortant  part  of  the  British  possessions  in  North  America. 
They  demand,  as  their  necessary  inherent  right,  the  liberty  of  navi- 
gating tlie  St.  Lawrence  from  its  source  to  the  sea,  though,  in  the  lat- 
ter part  of  its  course,  Thich  lies  entirely  wtthiii  the  British  dominions, 
and  comprises  a  space  of  nearly  six  hundred  miles,  that  river  tra- 
verses the  finest  settlements  of  Canada,  communicates  by  the  south 
witii  Lake  Champlain,  and  washes  the  quays  of  Montreal  and  Que- 
bec. 

A  pretension  which  thus  goes  to  establish  a  perpetual  thoroughfare 
for  the  inhabitants,  vessels,  and  productions,  of  a  foreign  country, 
through  the  heart  of  a  Britisli  colony,  and  under  the  walls  of  its  prin- 
cipal fortress,  has  need  to  be  substantiated  on  the  clearest  and  most 
indisputable  grounds.  It  requires,  indeed,  an  enlarged  view  of  what 
is  owed  in  courtesy  by  one  nation  to  another  to  justify  the  British 
Government  in  entering,  at  this  late  period,  on  the  discussion  of  so 
novel  and  extensive  a  claim. 

There  will,  however,  be  little  difficulty  in  showing,  that  the  claim 
asserted  by  the  American  Plenipotentiary  rests,  as  to  any  foundation 
of  tuitural  right,  on  an  incorrect  application  of  the  authorities  which 
he  has  consulted.  With  respect  to  the  claim  derived  from  an  acquired 
title  which  he  has  also  alleged,  that  ground  of  claim  will  I'cmain  to  be 
examined  hereafter ;  but  it  may  be  observed,  in  the  outset,  that  the 
natural  and  acquired  title  depend  on  principles  essentially  distinct ; 
that  the  one  cannot  be  used  to  mak^goud  any  defect  in  the  other ;  and 
although  they  may  be  possessed  independently  by  the  same  claimant, 
that  they  can,  in  no  degree,  contribute  to  each  others  validity. 

Proceeding  to  consider  how  far  the  claim  of  the  United  States  may 
be  established  on  either  of  these  titles,  it  is  first  necessary  to  inquire 
what  must  be  intended  by  the  assertion  that  their  claim  is  founded  on 
natural  right.  **  The  right  of  navigating  this  river,"  says  the  Ame- 
rican Plenipotentiary,  *'  is  a  right  of  nature,  pre-existent  in  point  of 
time,  not  necessary  to  have  been  suri-endercd  up  for  any  purpose  o£ 
common  good,  and  unsusceptible  of  annihilation."  The  right  here 
described,  can  be  of  no  other  than  of  that  kind  which  is  generally  de- 
signated in  the  law  of  nations  a  perfect  right.  Now,  a  perfect  right  is 
that  which  exists  independent  of  treaty ;  which  n<>cessarily  arises  from 
the  law  of  natuk^ ;  which  is  common,  or  may,  under  similar  circum' 


« 


stance,  be 
niedorinfi 
Such  is  th 
peace. 

U|>on 
for  the  Ui 
gable  riv 
another  p 
it  as  a  coi 

Applying 

Americai 

justified 

suming  t 

Tothi 

such  clai 

under  th 

considei 

The 

right  to 

tained  i 

Refei 

any  Vd 

minion 

ceptior 

says  V 

which 

where 

descri' 

earth 

ductic 

occup 

he  d< 

those 

heel 

righi 

righi 

publ 

imp< 

pern 

tion 

I 

rig 

^      tioi 

▼      enj 

rftl 

Gi 

T 


C 


Ei:?-fel 


•*-ijt 


■••*., 


[Doc.  No.  43.] 


43 


»nd,  rest, 
[•ations  of 
the  Go. 
'US  to  en* 

Affords  no 
or  total 

Jainj,  M'e 

fates  pre. 

srrupted 

parge  and 

'America. 

of  navi- 

theJat- 

Minions, 

fiver  tra- 

fho  south 

|wd  Qiie. 

»ughfar« 

countiy, 

itsprin- 
ind  most 

of  what 
.  British 
ion  of  so 

^e  claim 
'ndation 
s  which 
\cqtnred 
in  to  be 
:hat  the 
iatiiict ; 
r;and 
inoant, 

s  may 
iquire 
led  on 
Ante, 
int  of 
•se  €i 
here 
y  de- 
rhtis 
t'roia 
iuni' 


stance,  be  common  to  all  independent  nations ;  and  can  never  be  de- 
nied or  infringed,  by  any  State,  witliout  a  breach  of  the  law  of  nations. 
Such  is  the  right  to  navigate  the  ocean  without  molestation  in  time  of 
peace. 

U|)on  these  principles,  now  universally  received,  it  is  contended 
for  the  United  States  that  a  nation  possessing  both  shores  of  a  navi- 
gable river  at  its  mouth,  has  no  right  to  re^se  the  passage  of  it  to 
another  possessing  a  part  of  its  upper  banks,  and  standing  in  need  of 
it  as  a  convenient  channel  of  commercial  communication  with  the  sea. 
Applying  the  same  principles  to  the  case  of  the  St.  Lawrence,  the 
American  Government  maintain  that  Great  Britain  would  be  no  more 
justified  in  controlling  Amencan  navigation  on  that  river,  than  in  as- 
suming to  itself  a  similar  right  of  interference  on  the  high  seas. 

To  this  extent  must  the  assumption  of  a  perfect  right  be  carried,  or 
such  claim  is  no  longer  to  be  considered  in  that  character;  but,  falling 
under  the  denomination  of  an  imperfect  right,  it  becomes  subject  to 
considerations  essentially  and  entirely  different 

The  first  question,  therefore,  to  be  resolved,  is,  whether  a  perfect 
right  to  the  free  navigation  of  the  river  St  Lawrence  can  be  main- 
tained according  to  the  principles  and  practice  of  the  law  of  nations  ? 

Referring  to  the  most  eminent  writers  on  that  subject  ^ve  find  that 
any  liberty  of  passage  to  be  enjoyed  by  one  nation  through  the  do- 
minions of  another,  is  treated  by  them  as  a  qualified  occasional  ex- 
ception to  the  paramount  rights  of  property.  "  The  right  of  passage,*' 
says  Vattel,  « is  also  a  remainder  of  the  primitive  communion  in 
which  the  entire  earth  was  common  to  men,  and  the  passage  was  every 
where  free  according  to  their  necessities."  Grotius,  in  like  manner, 
describes  mankind  as  having,  in  their  primitive  state,  enjoyed  the 
earth  and  its  various  productions  in  common,  until  after  the  intro- 
duction of  property,  together  with  its  laws,  by  a  division  or  gradual 
occupation  of  the  general  domain.  Among  the  natural  rights,  which 
he  describes  as  having  in  part  survived  tliis  new  order  of  things,  are 
those  of  necessity  and  of  innocent  utility  ;  under  the  latter  of  which 
he  classes  the  right  of  passage.  Following  his  principle,  this  natural 
right  of  passage  between  nation  and  nation,  may  be  compared  to  the 
right  of  highway,  as  it  exists,  in  particular  communities,  between  the 
public  at  large  and  the  individual  proprietors  of  the  soil,  but  with  this 
important  difference,  that,  in  the  former  case,  commanding  and  indis- 
pensable considerations  of  national  safety,  national  welfare,  and  na- 
tional honor  and  interest  must  be  taken  especially  into  the  account. 

It  is  clear  that  on  this  principle,  there  is  no  distinction  between  the 
right  of  passage  by  a  river  flowing  from  the  possessions  of  one  na- 
tion, through  those  of  another,  to  the  ocean,  and  the  same  right  to  be 
enjoyed  by  means  of  any  highway,  whether  of  land  or  of  water,  gene- 
rally accessible  to  the  inhabitants  of  the  earth.  '<  Rivers,"  says 
Grotius,  «« are  subject  to  property,  though  neither  where  they  rise, 
«« nor  where  they  discharge  themselves,  be  within  our  Territory." 
The  right  to  exclusive  sovereignty  over  rivers,  is  also  distinctly  as- 
serted by  Bynkershoek,  in  the  ninth  chapter  of  his  treatise  <«  ou  the 


X        * 


*-^**. 


44 


I^Doc.  No.  48.] 


S 


' 


dominion  of  the  sea."  Nor  is  this,  by  any  means,  the  lull  latitude  to 
'which  the  priiiriplo,  if  applied  at  all,  must,  in  fairncHs,  he  extended. 
"All  nations,"  says  Vattel,  "  have  a  general  right  to  the  innocent, 
use  of  the  things  wliich  are  un<ler  any  one's  domain."  «•  Pi-opci-ty,'* 
says  ihc  same  author,  "cannot  deprive  nations  of  tiie  general  right  of 
travelling  over  the  earth,  in  order  to  have  couiumnication  with  each 
other,  for  carrying  on  trside,  and  other  just  reasons."  The  nature 
of  these  other  Just  re  .sons  is  explained  by  Grotius,  in  the  following 
sentence  :  ''A  passage  ought  to  be  granted  to  pei*s(ms,  whenever  just 
<« occasion  shall  require,  over  any  lands  or  rivers,  or  such  parts  of 
« the  sea,  as  belongs  to  any  nation  ;*'  as  for  '•  instance,  if,  being  ex- 
«  pelled  fr«>m  their  own  country,  they  want  to  settle  in  some  uninha- 
«bited  land,  or  if  they  are  going  to  traflic  with  some  distant  people, 
«or  to  recover,  by  a  just  war,  what  is  their  own  right  and  due." 

For  other  purposes,  then,  besides  those  of  trade,  for  objects  of  war, 
as  well  as  for  objects  of  peace,  for  all  nations,  no  less  than  for  any 
nation  in  particular,  does  the  right  of  passage  hold  good  under  those 
authorities  to  which  the  American  Plenipotentiary  has  appealed.  It 
has  already  been  shewn  that,  witli  irfercnce  to  this  right,  no  distinc- 
tion is  drawn  by  tiiem  between  land  and  water,  ami  still  less  between 
one  sort  of  river  and  another.  It  further  appeai-s,  from  Vattel,  that 
ihe  right  in  question,  ]tarticularly,  for  the  conveyance  of  merchandise, 
is  attached  to  artificial,  as  well  as  to  natural,  highways.  •'  If  this 
passage,"  he  observes,  ''occ-asion  any  inconvenience,  any  expense 
*'  for  the  preservation  of  canals  and  highways,  it  may  be  recompensed 
"  by  rights  of  toll." 

Is  it  then  to  be  imagined  that  the  American  Government  can  mean 
to  insist  on  a  demand,  involving  such  consequences,  without  being  pre> 
pared  to  apply,  by  reciprocity,  tiie  principle  on  which  it  rests  in  fa- 
vor of  Great  Britain  ?  Though  the  sources  of  the  Mississippi  are  now 
ascertained  to  lie  within  tije  territory  of  the  United  States,  the  day 
cannot  be  distant  when  the  inhabitants  of  Upper  Canada  will  find 
convenience  in  exporting  their  sujierfluous  produce  by  means  of  the 
channel  of  that  I'iver  to  the  ocean.  A  few  miles  of  transport  over 
lanil  are  of  little  consequence,  when  leading  to  a  navigable  river  of 
such  extent.  £ven  at  the  present  time,  a  glance  uiHin  the  map  is 
Sufficient  to  shew  that  the  course  of  the  Hudson,  connected  as  it  now 
is  with  the  watei's  of  the  St.  Lawrence,  would  afford  a  very  commo* 
dious  outlet  for  the  pi*oduce  of  the  Canadian  provinces.  The  com* 
])arative  shortness  of  this  passage,  especially  with  reference  to  the 
West  Indies,  would  amply  compensate  for  any  fair  expense  of  tolls. 

It  would  also  be,  in  some  instances,  convenient  and  profitable  for 
British  vessels  to  ascend  the  principal  rivers  of  the  United  States,  as 
far  as  their  draft  of  water  would  admit,  instead  of  depositing  their 
merchandise,  as  now,  at  the  appointed  poi'ts  of  entr)  from  the  sea. 
Nor  is  it  probable  tliat  other  nations  would  be  more  backward  than  the 
Bt'ilish  in  pressing  their  claim  to  a  full  participation  in  this  advan- 
tage. The  general  principle  which  they  would  invoke,  in  pursuance  of 
the  example  given  by  America,  and  a  partial  application  of  such  prin- 


ciples no 

of  a  natu^ 

manda. 

veiling  i»l 

more  espl 

Panama.! 

ciple.  as] 

to  the  oc^ 

The 

way  ft"" ' 
be  atteiij 
to  the 
lias  not  I 
felt  the  I 
ciple, b 
and  by 
ingum 
or  is  n» 
they  hi 
It  is 
right  ( 
•  li 

vant« 

right, 

proiK' 

propt 

make 

Tl 

ity.1 

thiiil 

con> 

IWJt 

to  j 
vkil 

cai 
fni 
it, 

8C 

dc 
hi 

▼ 

i 


K"-^^ -'A--'*    >^ 


[Doc.  No.  43.  j 


49 


l»»g  ex- 
Mil  inlia- 
ffwople, 


eiplcs  no  country  can  '  j  a  riglit  to  oxpoct  from  another,  is  clearly 
of  a  nature  to  authorize  the  inoHt  extraordinary  and  unlieard  of  de- 
mands. As  for  the  right  of  passage  from  sea  to  sea,  acroK&  any  inter* 
vening  isthmus,  such,  for  instance,  as  that  of  Corinth  or  of  Suez,  and, 
more  esperially,  from  the  Atlantic  to  tiie  I'acific,  by  tlic  isthmus  of 
Panama,  tliat  right  of  passage  folhtws  as  imincdiatciy  from  this  prin- 
ciple, as  any  surh  right  claimed  from  one  tract  of  land  to  another,  or 
to  tlie  ocean,  by  water  communication. 

I'he  exercise  of  a  right,  which  thus  goes  tiic  length  of  opening  a 
way  for  foreigners  into  tlie  boswm  of  every  country,  must  necessarily 
be  attended  with  inconvenience,  and  sometimes  with  alarm  and  peril* 
to  the  State  whose  tcrritoiies  arc  to  be  traversed.  This  conse^iuence 
has  not  been  overlooked  by  writers  on  tlie  law  of  nations.  They  have 
felt  t!ie  necessity  of  ('f)ntn)lling  tlie  operation  of  so  dungenms  aprin- 
cl|)le,  by  restricting  the  right  of  transit  to  purposes  of  innocent  utility, 
and  by  attributing  to  the  local  sovereign  the  exclusive  power  of  judg- 
ing under  what  circiimst;inv-es  the  passage  through  his  dominions  is, 
or  is  not,  to  be  regarded  as  innocent.  In  other  words,  the  right  which 
they  have  described  is.  at  best,  only  an  iMi;»e)/cc<  right. 

It  is  under  tlie  hciul  of  innocent  utility,  that  Gvotius  has  classed  the 
right  of  passage,  as  before  laid  down  in  his  own  exjjressions. 

"  Innocent  utility,"  he  adds,  •'  is  when  I  only  seek  my  own  ad- 
vantage, without  damaging  any  body  else."  In  treating  of  the  i^ame 
fight,  Vattel  remarl<s,  tiiat,  «•  since  the  introduction  of  domain  and 
property,  we  ran  no  otherwise  make  use  to  it,  than  by  respecting  the 
pro|)er  right  of  others."  «» The  effect,"  he  adds,  "of  property,  is  to 
make  the  advantage  of  the  proprietor  pi-evail  over  that  of  all  others.*' 

The  same  author  defines  the  right  of  innocent  use,  or  innocent  util- 
ity, to  be  "tljr  right  we  have  :o  tliat  use  which  may  be  drawn  from 
things  belonging  to  another,  without  causing  him  cither  loss  or  in- 
convenience.*' He  goes  on  to  say.  tliat  '» this  right  of  innocent  «se  is 
not  a  perfect  richt  like  that  of  necessity :  for  it  belongs  to  the  master 
to  judge  if  the  use  we  would  make  of  a  thing  that  belongs  to  him, 
will  be  attended  with  no  damage  or  inconvenience." 

With  r.^spect  to  the  assertion  of  Grotius,  as  quoted  by  the  Ameri- 
can Plenipotentiary,  "that  the  mere  apprehension  of  receiving  injury 
fiHim  tlie  exercise  of  tliis  right,  is  not  a  sufficient  reason  for  denying 
it,"  the  author,  it  must  be  observed,  is  addressing  himself  to  the  con- 
science of  the  Sovereign  thiough  whose  territories  a  passage  may  be 
demanded  ;  impressing  upon  his  mind  that  he  cannot  fully  discharge 
his  moral  obligations  in  giving  such  refusal,  unless  he  be  well  con- 
vinced that  his  fears  originate  in  just  causes.  But  it  would  be  ab- 
«urd,  and  conti-ary  to  the  general  tenor  of  his  argument,  to  suppose, 
that  a  well  founded  apprehension  was  not  to  have  its  due  effect,  or  that 
the  advantage,  oi"  even  necessity,  of  a  foreign  nation  could  be  justly 
recognized  by  him  as  paramount,  in  the  one  case,  to  the  leading  in- 
terests, in  the  otiier.  t'»  the  safety,  of  liis  own. 

it  is  further  to  be  obscr\  cd.  that  Grotius,  in  the  argument  referred 
to,  had  clearly  in  view  an  omisinnal  liberty  of  passage,  not  of  that 
perpetual,  uninterrupted  kind,  which  the  regular  activity  of  modem 


-M 


46 


rDoc.  No.  48.] 


t  '..= 


conMnerce  reciuifes*  But  the  doctrine  of  Grotius,  applied  to  mor- 
GhamUse,  and  taken  in  tlio  sense  asciibed  to  it  by  tliP|Anivi  iran  Pleni- 
potentiary, is  distinctly  contradicted  by  other  eminent  writers  on  tlie 
tawof  nations.  Puffendorf,  for  instance,  in  his  great  worlc  on  that  sub- 
joct,  expresses  himself  r.a  fcdiows  :  "  We  may  have  good  reasons  for 
fitnppiDg  foreign  merchandise,  as  >\ell  by  land  as  on  a  river,  or  on  an 
arm  of  tfio  sea,  within  our  dependence.  B'or  besides  tliat  a  too  great 
aflluence  of  foreignei's  is  sometimes  prejudicial  or  suspicious  to  a 
State,  >ihy  should  not  a  Sovereign  secure  to  his  own  subjects  tlie 

Jirofit  made  by  foreigners,  under  favor  of  the  passage  which  be  al- 
ows  them  '"  "  1  admit  that,  in  allowing  foreigners  to  carry  their 
mcrrhandi.se  elnewhere,  even  without  paying  for  the  passage,  we  do 
not  sustain  .^tiy  dautagc,  an*)  that  they  do  us  no  wrong  in  pretending 
to  an  advanUj^e  ot'wiiicli  we  might  have  possessed  ourselves  beforf 
them.  L  it,  at  the  same  time,  as  they  have  no  right  to  exclude  us 
from  it,  Wiiy  should  we  not  try  to  draw  it  to  ourselves  r  Why  should 
we  not  prefer  our  interest  to  theirs  ?" 

Tbc  same  author  observes,  in  the  next  section  of  his  work*  that 
**  a  State  may  fairly  la,<»  a  duty  on  foreign  goods  conveyed  through 
<<  its  territory,  byway  of  compensation /or  what  its  subjects  lose  by 
.  «  admitting  a  new  contpetitor  into  the  market." 

To  apprcciiitt;  the  full  force  of  these  opinions,  it  must  be  borne  in 
mind  Ihat  Putfendorf  appears  to  sjicak  of  a  foreign  nation  so  situat* 
Oil  as  to  depend  exclusively  on  the  passage  in  question  for  the  sale  of 
its  superfluous  produce,  and  the  importation  of  supplies  from  abroad. 
Tliis  part  of  the  subject  may  be  closed  with  the  following  decisive 
Words  of  Barbcyrar,  in  his  Notes  on  Grotius  :  <'  It  necessarily  fol- 
*^  lows  from  the  righ*:  of  property,  that  the  proprietor  may  refuse 
«  another  the  use  of  his  goods.  Humanity,  indeed,  requires  that  he 
**  should  grant  that  use  to  those  who  stand  in  need  of  it,  when  it  can 
<«  be  done  without  any  considerable  inconveniency  to  himself;  and,  if 
**  he  even  then  refuses  it,  though  he  transgresses  his  duty,  he  dotb 
<<  them  no  wrong,  prtjierly  so  called,  except  they  are  in  extreme  ne« 
*«  cessity,  which  is  superior  to  all  ordinary  rules.'* 

But  the  American  Plenipotentiary  maintains  that  the  right  of 
passage,  as  understood  by  him  in  opposition  to  his  ovn  authorities, 
that  is,  independent  of  the  sovereign's  consent,  and  applied  to  the  sin- 
gle predicament  of  the  St  Lawrence,  has  been  substantially  recogniz- 
ed by  the  Powers  of  Europe,  in  the  treaties  of  general  pacification^ 
concluded  at  Paris  in  1814.  and  in  the  following  year  at  Vienna. 

It  is  true  that,  in  the  solemn  engagements  then  contracted  by  them, 
the  Sovereigns  of  the  leading  States  of  Europe  manifested  a  disposi-  ' 
tion  to  facilitate  commercial  intercourse  between  their  respective 
countries,  by  opening  the  navigation  of  such  of  the  principal  rivers  as 
separated  o.  ^raversed  the  territories  of  several  Powers,  Thio  policy 
vas  applied  more  particularly  to  the  Rhine,  the  Nfccker»  the  Maine, 
the  Moselle,  the  Macse,  and  the  Scheldt.  But  neither  in  the  gene« 
ral,  nor  in  the  special  stipulations,  relating  to  the  free  navigation  of 
rivers,  is  tlici-e  any  thing  to  countenance  the  principle  of  a  natural» 
independent  right,  as  asserted    by  the  American  Plenipotentiary. 


f 


VTe  finfl*  <*^ 

tween  Franc 

once  throwr 

rivers,  it  wi 

ritngenient  I 

i^snemble  at 

Ifrance.  in 

on  the  bani 

The  stipuli 

Vienna,  c 

•♦  States  a 

<»  to  I•e^ul 

Tliey  clos 

shall  not ' 

iering  on 

It  is  e' 

to  favor 

tions  of 

tovereig 

common 

betweei 

Unowle* 

own  en 

foreigr 

nation 

openei 

stipul 

gress 

opinv 

vhid 

lenc< 

tive 

izei 

und 

uni1 

ho^ 

nta 

siv 

frs 

ti 

a 

e 


*» 


ise 

to 

in 

if 

b 


f 


[Doc.  No.  43.] 
We  find,  on  ttie  contrary,  that,  in  the  treaty  concluded  at  Paris    be 

^Up  J  n^   "  °^"  *!*  S*"""^'  navigation.    With  respect  t.  H.e  ofl.Jr 
rr^emint  toNt^^^^^  ""^^"^  «f  extending  tLtar- 

aSleitvSr»  «'r'^  be  de.cnnincd  hy  the  Cougres?  about  to 
Jw  in  l^^^^^^^^  '"  *'"•  '""t^"^"  "f  the  Rhino,  it  was  natural  for 
on  the  banlf«  nf .?  f  P°'"'«««'""«  which  she  ha.l  for  some  time  enjoyed 
on  the  banlts  of  that  river,  to  stipulate  a  reserve  of  the  navieation 
The  st.pulat.ons  relating  to  rive.' navigation,  in  the  gcne.%T  tS  "f 
Vienna,  commence  in  the  following  manner  :  "  Ti.f  l^lwTrs  w K 
States  are  separated  or  c..«se,l  hy  the  same  navig  SleiiveTJion 
^to  regulate,  by  common  consent,  all  that  rcga.ls  tr.,av&ation^' 
sTt^fnotT/h'' ""h'S'"''""'"*  *'''^*  *'"^  res„I.?ti«ns,   o^c'   atted, 

It  IS  evident,  thei-efore,  that  the  allied  Gove.^ments,  in  concurrinir 

S.;roT  ontiSLY'S:'  ''".'"i  *''TS"  *"«  S-«*  wat^rcITJu  c"? 
Mons  01  cont.nental  Europe,  d.d  not  lose  s  ghtof  what  was  iIhp  f,.  tl.A 

.overe.gnty  of  particular  States  ;  and  that,  wl  en  tty  rder^d  1  e 
common  enjoyment  of  certain  navigable  risers  to  vXntlryco,nn.S 
between  the  parties  mor«  immediately  concerned,  tIefSuairic. 
knowledged  the  right  of  any  one  of  those  parties  S  bound  bv  Us 
own  engagements,  to  withhold  the  passage,  th.  lugh  its  dlinLns  fioS 
foreign  merchant  vessels.  As  f.eedo,„  of  ..avigation  in  fetor  of  aU 
nations,  a,.d  not  merely  of  those  which  bor.l?r  on  the  rivers  thu" 
SulatioL  TfS;'  rr  ''''  '"""?•">*«  "•'J'^'^*  «•■  t''^  abover;.enTio„ed 
gres8,,il  they  had  felt  themselves  borne  out  by  the  practice  or  eeneral 
SlIlTti"^  ^TT^  ^"""  ""i  *'«^«  hesitated  to  p.H^raim Te  Ssurl 
I^Si«  f^  "''"P/.f?'  *"  .""^  **f  "•'*•"'»''  independent  right.  ThetrsU 
lence  alone  on  this  point  might  have  been  taken  as  stronRlv  in  Hca 

117:I  ^ht''.^"'^*?'"*  ^^'  P^«^«'""S  "s^g^of  Euroi^  would  a"  W 
^i^Jl^iltf ''^^"/k  ^V^'  •"•'"'^''•'^  of  mutual  consent  iT  «1 
unSZ  ;  ]•  """'  *''«.^?"?-«''y  supposition,  and  must,  at  least,  be 
understood  to  g.ve  a  special  cha.acter  to  the  engagements  contracted 
under  it,  confining  them  to  the  rivers  enumerate^d  in  th^^re^y  :  a  .d 
however  laudable,  as  an  example  to  other  States,  whose  cirrmstances 
inay  allow  o  heir  Imitating  it  without  danger  or  detri^t  exn"es! 
filml""       *      "  '"'^""'^  the  occasion  for  which  tlTe  U  ;aty'^wi 

It  would  take  up  too  much  time  to  demonstrate,  by  a  detailed  inves- 
tigation of  every  rase  to  which  the  American  argument  applie  The 
negative  proposition,  that  no  nation  exeirises  the  liberty  of  nav  gating 
a  nyer,  th.-.,ugh  the  territories  of  anothe.-.  except  by  pc-m'sslmo? 
tlSZl?!"*'""" T'l!'.'"  *','"?*>•  ^*  '•'*  '•'^*''«'-  for  the  A.ncican  Go- 
tf.eUn.ted  States  is  exerc.scd  explicitly  as  a  natural,  independent 

The  case  of  the  Scheldt,  though  referred  to  by  the  American  Pleni- 


•^ 


iw  —If.,, 


i'v.* 


:U-. 


■^-i  '•NUk . 


[Doc.  No.  48.] 

potcntiary,  is  certftiiily  not  one  of  this  kind.    The  leading  circum- 
Btaiices  relating  to  that  river  were,  first,  that  its  months,  inrluding 
the  canals  of  Sum  and  Swin,  lay  within  the  Dnich  Territory,  while 
piirtH  of  Its  ii|)|»<*«'  channel  were  situate  within  the  Flemish  provinces. 
Sic""«l'y»  '1''"'^  ^'"^  treaty  of  Westphalia  had  ronfirined  the  right  of 
the  Dutch  to  close  the  mouths  of  the  river.    Thirdly,  That  the  exer- 
cise of  this  rig'it  was  disputed,  after  a  lapse  of  more  than  a  hundred 
year*,  by  the  Emperor  of  Germany  :  and.  fourthly,  that  the  dispute 
between  that  monarch  and  the   Uut/h  Kepuhlir  terminated,  in  1785, 
by  leaving  the  Dutch  in  possession  of  the  right  which  had  been  dis- 
puted.    It  is  ti'ue  that,  at  the  latter  period,  the  Dufrh  founded  their 
claim,  In  part,  on  the  eNpense  and  lahor  which  they  had  undergone 
in  improving  the  river;  but,  it  is  true,  at  the  same  time,  that  ihey 
also  grounded  it  on  the  general  law  of  nations.     Above  all.  they 
rested  it  on  the  treaty  (»f  Westplriiia.     But  if  the  right  of  the  Dutch 
Republic  bad  been  roi:.itenanced  by  the  law  and  practice  of  nations, 
why,  it  may  asketl,  should  it  have  licen  thought  necessary  to  coniirnfi 
that  right  by  t!ie  treaty  of  Westphalia  ?  The  reply  is  obvious,  that 
conilrmation  was  tlie  resort  of  the  weak  agaitist  the  strong  :  of  the 
ft>rnier  deinndents  of  Spain  against  the  encroachments  of  a  haughty 
p«>wcr.  still  sovereign  of  Antwerp,  and  the  neighboring  provinces, 
and  not  having  yet  renounced  its  claim  of  sovei-eignty  over  Holland 
itself.     It  was  natural  for  the  Dutch,  under  such  circumstances,   to 
fortify  tlieir  right  by  the  general  SHUcticm  of  Europe  ;  but  it  was  not 
natural  for  the  principal  parties  In  the  pacification  of  Munster,  to  lend 
their  sanction  to  a  measure  in  din'ct  contradiction  to  acknowledged 
principles  :  or.  if  their  scruples,  as  to  the  admission  of  such  a  mea- 
sure, had  been  removed  by  special  motives,  it  is  strange  that  they 
slioidd  not  liave  ♦aken  the  obvious  precaution  of  recording  those  mo- 
tives.    During  the  discussions  about  the  Scheldt,  in   1785,  the  Em- 
press of  Russia  was  the  only  Sovereign  who  otHcially  declared  an 
opini<»n  in  favor  of  the  House  of  Austria.     But  the  United  States  can 
derive  no  great  advantage  from  a  dcclaratiim  couched  in  such  terms 
as  these  :  '•  Nature  herself  hath  granted  to  the  Austrian  Low  Conn- 
«•  tries  the  use  and  advantage  of  the  river  in  dispute ;  Austria  alone, 
*•  by  virtue  of  the  law  of  natui-e  and  nations,  is  entitled  to  an  exclusive 
**  riglit  to  the  river  in  question.     So  that  the  equity  and  disinterest- 


edness of  Joseph  II.  can  only  impart  this  right  to  other  pcopl 
*«  it  belonging  exclusively  to  his  States." 

The  opinions  proclaimed  on  this  subject  by  the  Russian  Govern- 
ment are  the  more  remarkable,  as  there  is  no  country  which  has  a 
greater  interest  than  Russia  in  the  disputed  question.  It  is  well  known, 
that  the  only  approach  to  the  Russian  ports  on  the  Black  Sea,  from 
the  Mediterranean  and  Atlantic,  is  by  the  passages  of  the  Dardanelles 
and  Bosphorus.  These  canals  are.  in  fact,  salt-water  straits,  com- 
miuiicating  from  sea  to  sea  :  passing,  it  is  true,  between  the  Turkish 
territories  in  Kurope  and  Asia,  but  with  no  great  length  of  course,  and 
leading  to  a  vast  cx^iansc  of  inland  water,  the  shores  of  which  ai** 
occupied  by  no  less  than  1111*06  independent  Powers. 


f 


There  is"  ™« 
AatoftheSt.1 

between  rivers 
fact,  the  navigi 
Joyed  b,  Buss. 

tries,  on  the  IB 

Even  the  navi 

accorded  to  A 

f^eftsion  made 

the  most  ion 

Kood  will  of 

**  The  case* 

this  view  oi 

■vigation  of 

in  which  Gi 

motives  tha 

strained  h 

object  as  tl 

respecting 

western  b« 

the  whole 

■with  the 

teservatK 

tion  of  til 

very  fact 

tion  in  t 

sion  of  I 

to  an  in 

can  Pie 

At  a 

ject  o1 

fourth 

in  179 

tween 

with 

river 

i(K.i 

« th 

It 

quo 
dra 
wit 

•       for 
thi 
n 
u 

tl 


'V' 


li 


-iVr=;.-, 


I- 


[Doc.  No.  43.]  H 

There  is'  tnanifcstly  a  wide  diflTeronce  between  such  a  case  and 
that  of  the  St.  Lawrence,  nor  can  the  marked  difference  in  principle 
between  rivers  and  straits  be  overlooked ;  and  yet,  as  matter  of 
fact,  the  navigation  of  the  Black  Sea,  and  the  adjacent  canals,  is  en- 
joyed  by  Russia — by  that  Power  which  has  so  otten  dictated  its  own 
conditions  to  the  Porte — in  virtue  of  a  treaty,  founded,  like  other  trea- 
tries,  on  the  mutual  convenience  and  mutual  advantage  of  the  parties. 
Even  the  navigation  of  the  Danube,  downwards  to  the  ocean,  was  first 
accorded  to  Austria  by  the  Turkisli  Government,  as  a  specific  con- 
cession made  at  a  juncture  when  the  Porto,  involved  in  aquai*rcl  with 
the  most  formidable  of  its  neighbors,  was  compelled  to  propitiate  tlie 
good  will  of  other  ChriHtian  Powers. 

The  case  of  the  Mississippi  is  far  from  presenting  an  exception  to 
this  view  of  the  subject.  The  treaty  of  1763,  which  opened  the  na- 
vigation of  that  river  to  British  subjects,  was  concluded  after  a  war 
in  which  Great  Britain  had  been  eminently  successful.  The  same 
motives  that  prevailed  with  France  to  cede  Canada,  must  have  re- 
strained  her  frm  hazarding  a  continuance  of  hostilities  for  such  an 
object  as  the  exclusive  navigation  of  the  Mississippi.  The  agreement 
respecting  that  river,  makes  part  of  the  general  provisions  as  to  the 
western  boundary  of  the  British  possessions  in  America,  by  which 
the  whole  left  side  of  the  Mississippi  was  ceded  to  Great  Britain, 
"with  the  exception  of  the  town  and  island  of  New  Orleans.  This 
reservation  was  admitted  on  the  express  condition,  that  tite  naviga- 
tion of  the  whole  channel  should  be  open  to  British  subjects.  The 
very  fact  of  its  having  been  thought  necessary  to  insert  this  stipula- 
tion in  the  treaty,  in  consequence  of  France  having  retained  posses- 
sion of  both  banks  of  the  river,  at  a  single  spot,  leads,  irresistiblyt 
to  an  inference  the  very  reverse  of  what  is  maintained  by  the  Ameri- 
can Plenipotentiary. 

At  a  later  period,  the  navigation  of  the  Mississippi  became  a  sub- 
ject of  arrangement  between  Spain  and  the  United  States.     By  the 
fourth  article  of  their  treaty  of  boundary  and  navigation,  concluded 
in  1795,  a  similar  agreement  to  that  which  had  before  subsisted  be- 
tween France  and  Great  Britain,  was  effected  between  those  Powers, 
with  this  remarkable  difference,  that  the  liberty  of  navigating  the 
river  was  expressly  confined  to  the  "  parties  themselves,  unless  the 
«  King  of  Spain,"  to  use  the  words  of  the  treaty,   "  should  extend 
"  the  privilege  to  the  subjects  of  other  Powers  by  special  conventimJ* 
It  must  not  be  overlooked,  that,  when  the  clause  which  is  here 
quoted,  and  the  exclusive  stipulation  immediately  preceding  it,  were 
drawn  up,  the  sources  of  the  Mississippi  were  still  supposed  to  be 
within  the  British  territory ;  and,   at  tlie  same  time,  there  was  in 
force  a  treaty  between  Great  Britain  and  the  United  States,  declaring 
that  «*  the  navigation  of  the  river  Mississippi,  from  its  source  to  the 
«  ocean,  should,  forever,  remain  free  and  open  to  the  subjects  of 
"  Great  Britain.*'  .,       ..    ^   r 

Some  additional  light  may,  i^rhaps,  be  thrown  on  the  object  of 
the  present  discussion,  by  the  quotation  of  a  note  on  the  fourth  article 


60 


[Doc.  No.  49.] 


of  the  Spanish  trf»ty,  "which  is  printed  in  the  collection  of  the  United 
StateH'  laws,  arranged  and  published  under  the  authority  of  an  act  of 
Coitgress.    It  is  as  follows : 

••  Whatsoever  right  his  Catholic  Majesty  had  to  interdict  the  ft«e 
"  navigation  of  the  Mississippi,  to  any  nation,  at  the  date  of  the  tre*. 
« ty  '>r  San  Lorenzo  ol  Real,  (the  srth  of  October,  1795,)  that 
<•  right  was  wholly  transferred  to  the  United  States,  in  virtue  of  the 
«  cession  of  Louisiana  from  France,  by  the  treaty  of  April  SOUi, 
«  1803.  And,  as  the  definitive  treaty  of  peace  was  concluded  pre- 
«  viously  to  the  transfer  to  the  United  States  of  the  right  of  Spain 
**  to  the  dominion  of  the  river  Mississippi,  and,  of  course,  prior  to  tito 
«  United  States*  possessing  tlie  Spanish  right,  it  would  seem  that  the 
«  stipulation  contaied  in  the  8ih  article  of  the  definitive  treaty  with 
<*  Great  Britain,  could  not  have  included  any  greater  latitude  of  na^ 
**  vigation  on  the  Mississippi,  than  that  which  the  United  States 
«  were  authorized  to  grant  on  the  Sd  of  September,  1783." 

**  The  additional  right  of  sovereignty  which  was  acquired  over  the 
«  river  by  the  cession  of  Louisiana,  was  paid  for  by  the  American  Go* 
**  vernment ;  and  therefore  any  extension  of  it  to  a  Foreign  power 
«  could  scarcely  be  expected  without  an  equivalent.** 

The  natural  right  asserted  by  the  American  Plenipotentiary  being 
thus  examined  in  respect  both  to  the  principles  which  it  involves, 
and  to  the  general  practice  of  nations,  the  acquired  title,  as  distinct 
from  the  natural,  stands  next  for  consideration. 

This  title  is  described  in  the  American  argument,  as  oHginating  in 
circumstances  which  either  preceded  or  attended  the  acquisition  of  the 
Canadas  by  Great  Britain.  It  is  said,  <«that,  if  Great  Britain  pos- 
sessed  the  navigation  of  the  St.  Lawrence  before  the  conclusion  of 
peace  in  176S,  so  did  the  People  of  the  United  States,  as  forming,  at 
that  time,  a  part  of  the  British  empire ;  but  if  Great  Britain  only  first 
acquired  it  together  with  the  Canadas,  then  did  the  People  of  the 
United  States  acquire  it  common  with  her  at  the  same  period."  In 
both  the  supposed  cases,  it  is  taken  for  granted,  that  whatever  liberty 
to  navigate  the  St.  Lawrence,  in  the  whole  length  of  its  course,  the 
inhabitants  of  the  United  States  enjoyed  when  those  States  were  part 
of  the  British  Empire,  continued  to  belong  to  them  after  their  separa* 
tion  from  the  mother  country.  Now,  if  this  were  so,  it  would  also  be 
true,  and  in  a  far  stronger  degree,  that  the  subjects  of  Great  Britain 
have  an  equal  right  to  enjoy,  in  common  with  American  citizens,  the 
nseof  tlie  navigable  rivers  and  other  public  possessions  of  the  United 
States,  whicli  existed  when  both  countries  were  united  under  the  atone 
Government.  For  the  acquired  title,  be  it  remembered,  docs  not  aSbct 
the  St.  Lawrence,  as  a  river  flowing  from  the  territories  of  one  Power, 
thmugli  those  of  another,  to  the  sea,  but  is  manifestly  grounded  on  the 
supposition  that  an  object  wliich  had  been  possessed  in  common  by 
the  People  of  both  countries,  um  to  the  time  of  their  separation,  con- 
tinues  to  belong,  in  point  uf  use,  to  both,  a*ter  they  have  ceased  to  be 
parts  of  the  same  community.  If  it  be  true,  that  tlie  inhabitants  of  the 
iJmted  States  contributed,  as  British  subjects,  to  etfect  the  conquest 


o 


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before  their  sep 

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kieainst  their  u 

the  waters  ofj 
•very  8»n»e  ej 
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mentasgrou; 
rence,  as  «el 
BrltUh  Prov 
the  British « 
otargumenj 
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By  that 
the  two  Pc 
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the  actual 
treaty,  c« 
separate*! 
By  th« 
rccognia 
express 
pulfttinj 
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o 


[Boc.  No.  48.]  it 

of  Canai1a«  it  cannot,  at  the  same  time,  be  denied,  that  the  United  States, 
before  their  separation  from  Great  Britain,  were  frequently  indebted 
to  the  councils  and  exertions  of  tlic  parent  country  for  protection 
against  their  unquiet  and  encroaching  ncighbora. 

Specifically  did  they  owe  tu  Qreat  Britain  their  first  enjoyment  of 
the  waters  of  the  Mississippi,  conquered  in  part  from  France  by  the 
'very  same  efforts,  which  transformed  Canada  from  a  French  Nettlc- 
ment  into  a  British  Colony.  The  pretension  of  the  American  Govern- 
ment as  grounded  on  the  simultaneous  acquisition  of  the  St  Law- 
rence, as  well  by  tlie  inhabitants  of  the  adjacent,  and,  at  that  time, 
British  Provinces,  as  by  those  of  the  countries  originally  composing 
the  British  monarchy,  must,  therefore,  if  admitted,  even  for  the  sake 
of  argument,  be  applied  reciprocally  in  favor  of  Great  Britain. 

The  fact,  however,  is,  that  no  such  pretension  can  be  allowed  to 
have  survived  the  treaty  by  which  the  independence  of  tite  United 
States  was  first  acknowledged  by  Great  Britain. 

By  that  treaty  a  perpetual  line  of  demarcation  was  drawn  between 
the  two  Powers,  no  longer  connected  by  any  otlicr  ties  than  those  of 
amity  and  conventional  agreement. 

No  portion  of  the  sovereignty  of  the  Britisli  empire,  exclusive  to 
the  actual  territory  of  the  United  States,  as  acknowledged  by  that 
treaty,  could  possibly  devolve  upon  tlic  People  of  the  United  States, 
separated  from  Great  Britain. 

By  the  same  instrument,  the  territorial  bounilary  of  the  States,  as 
recognized  by  their  former  sovereign,  were  carefully  defined,  for  the 
express  purpose  of  avoiding  disputes  in  fut«ire ;  and  the  articles  sti- 
pulating for  a  concurrent  enjoyment  of  the  North  American  fisheries, 
and  of  the  navigation  of  the  river  Mississippi,  prove  that  equal  care 
was  taken  to  determine,  in  the  general  act  of  pacification  and  ac- 
knowledgment, those  objecfa,  of  which  the  usufruct  in  common  was 
either  retained  or  conceded  by  Great  Britain. 

Is  it  conceivable,  under  these  circumstances, that  thetreaty  of  1783, 
should  have  made  no  mention  of  the  concurrent  navigation  of  the  S»t. 
Lawrence,  if  the  claim,  now  raised  by  the  United  States,  had  rested  on 

any  tenable  grounds  ?  „    „    .     j,.*.      i p 

But  tlie  commercial  treaty  of  1794,  would  afford  additional  proof, 
if  it  were  wanted,  that  the  channel  of  the  St.  Lawrence,  from  the  sea 
to  the  45th  parallel  of  latitwle,  was  never  for  a  moment  considered  as 
forming  any  exception  to  the  territorial  possessions  of  Great  Britain. 
The  third  article  of  the  commercial  treaty  shows,  most  clearly, 
that  the  power  of  excluding  foreign  vessels  from  tliose  parts  ol  the 
liver  which  flow  entirely  within  the  Britisli  dominions,  was  deemed 
to  belong  of  right  to  the  British  Government.  The  leading  jpurpose 
of  that  arUcle  is,  to  establish  a  free  commercial  intercourse  Ijetween 
the  two  parties  throughout  their  respective  territories  in  North  Amc« 

*^' The  same  article  contains  a  limitation  of  this  privUege  with  re- 
spect to  a  considerable  portion  of  the  St.  Lawrence,  to  wluch  it  was 
declared  that  American  vessels  were  not  to  have  access  ;  and  the 


<   I 


':■  U 


'^  [Doc.  No.  43.3    ^ 

corresponding  restriction  against  Great  Britain,  was  an  exclusion  of 
British  vessels  from  such  parts  of  the  rivers  of  the  United  States  as 
lie  above  the  highest  ports  of  entry  for  foreign  shipping  fn)m  the  sea. 

It  necessarily  results,  from  the  nature  of  the  two  clauses  thus  view-  I 
cd  with  reference  to  each  other,  that  the  authority  of  Great  Britain 
over  the  part  of  the  St.  Lawrence  interdicted  to  American  vessels, 
was  no  less  completely  exclusive,  than  that  of  the  United  States  over 
such  parts  of  their  interior  waters  as  were,  in  like  manner,  interdicted 
to  the  sliipping  of  Great  Britain. 

Tlie  former  limitation  is,  besides,  of  itself  inconsistent  with  the  no- 
tion of  a  right  to  a  free,  uninterrupted  passage  fur  American  vessels, 
by  the  St.  Lawrence,  to  the  ocean. 

Nor  is  it  less  conclusive  as  to  the  merits  of  the  case,  when  coupled 
with  the  declaration,  contained  in  the  very  same  article,  that  the  navi- 
gation of  the  Mississippi  was  to  he  enjoyed  in  common  by  both  par- 
ties, notwithstanding  that  a  subsequent  article  of  the  same  treaty 
expresses  the  uncertainty  which  already  prevailed  with  respect  to  the 
sources  of  that  river  being  actually  situated  within  the  British 
frontiers. 

With  these  facts  in  view,  it  is  difficult  to  conceive  how  a  tacit  en* 
joymcnt  of  the  navigation  now  claimed,  can  be  stated  by  the  American 
Plenipotentiary  to  account  for  the  silence  maintained  on  this  subject 
by  his  Government,  from  the  establishment  of  its  independence  to  the 
present  negotiation. 

In  the  course  of  forty  years,  during  which  no  mention  whatever 
has  been  made  of  this  claim,  there  has  been  no  want  of  opportunities 
fit  for  its  assertion  and  discussion.  To  say  nothing  of  periods  ante- 
rior to  the  rupture  of  1812,  it  is  strange  that  an  interest  of  such  vast 
importance  should  have  been  wholly  neglected,  as  well  on  the  renewal 
of  peace,  in  1815,  as  during  the  negotiation  of  the  commercial  treaty 
which  took  place  in  the  close  of  that  year.  This  long  continued  si- 
lence is  the  more  remarkable,  as  the  mere  apprehension  of  an  eventual 
change  in  the  regulations,  under  wtiich  a  p^irt  of  the  St.  Lawrence  is 
actually  navigated  by  foreign  vessels,  has  been  alleged  by  the  Ameri- 
can Government  as  their  reason  for  now  raising  the  discussion. 

The  regions  contir^uous  to  the  upper  waters  of  the  St.  Lawrence 
arc  doubtless  more  extensively  settled  than  they  were  before  the  late 
war,  and  the  inltabitants  of  those  regions  might  at  times  find  it  ad- 
vantageous to  export  their  lumber  and  flour  by  the  channel  of  that 
river.  But  mere  convenience,  and  the  profits  of  trade,  cannot  be 
deemed  to  constitute  that  case  of  extreme  necessity  under  the  law  of 
nations,  to  which  the  rights  of  property  may  perhaps  bo  occasionally 
required  to  give  way.  It  has  already  been  shown,  tliat  such  interests  0) 
can,  at  most,  amount  to  an  imperfect  right  of  innocent'utility,  the  exer- 
cise of  which  is  entirely  dependent  on  the  will  and  discretion  of  the 
local  sovereign.  Of  this  description  arc  the  rights  and  accompanying 
duties  of  nations  to  trade|With  each  other,  and  to  permit  the  access  of 
foreigners  to  their  respective  waters  in  time  of  peace ;  but  will  any 
One,  at  the  same  time,  call  in  question  the  co-existing  right  of  every 


State,noton1lyJ 

«ith  others,  but 

tlditaltogcj^ 

If  ever  ther< 

^ien  the  indis 

ISen  with  ever: 

tage  of  fnendl 

uSited  States. 

It  cannot  « 

vViich  make  tl 

cealihg.  that, 

tection,  those 

volved  in  the 

for  Americat 

end  of  Cana< 

Interests  ( 

petition  witl 

Vide,  they  h 

weight.     1 

of  GreaJ  B 
will  suffice 
It  has  b( 
States,  is  i 
exclusive 
It  hash 
theiawo 
theopinu 
ty  and  e 
territorj 
Thefl 
that  th 
througl 
trine  sJ 
The| 
in  this 
bccn«| 
feren^ 

ehlig 
ty  al 
airel 
thej 

♦    J 

Ai 


[Boc.  No.  48.] 


5d 


il 

y 


0) 


State,  not  only  to  regulate  and  to  limit  its  commercial  intercourse 
with  others,  but  even,  as  occasion  may  require,  to  suspend  or  to  with- 
hold it  altogether  ? 

If  ever  there  was  a  case,  which  particularly  imposed  on  a  sove- 
reign the  indispensable  duty  of  maintaining  this  right  unimpaired* 
even  with  every  disposition  to  consult  the  convenience  and  fair  advan- 
tage of  friendly  nations,  it  is  the  present  unqualified  demand  of  the 
United  States. 

It  cannot  be  necessary  to  enumerate  the  various  circumstances 
which  make  this  claim  peculiarly  objectionable ;  but  there  is  no  con- 
cealing, that,  besides  the  ordinary  considerations  of  territorial  pro- 
tection, those  of  commercial  interest  and  colonial  policy  are  alike  in- 
volved in  the  demand  of  a  free,  gratuitous,  unlimited  right  of  passage 
for  American  citizens,  with  their  vessels  and  merchandise,  fronv  one 
end  of  Canada  to  the  other. 

Interests  of  such  high  national  importance  are  not  to  be  put  in  com- 
petition with  the  claims  of  justice ;  but  witen  justice  is  clearly  on  their 
side,  tiiey  have  a  right  to  be  heard,  and  cannot  be  denied  their  fuil 
weiglit.  That  the  right  is,  in  this  instance,  undoubtedly  on  the  side 
of  Great  Britain,  a  moment's  reflection  on  the  preceding  argument 
will  suflice  to  establish. 

It  has  been  shewn  that  the  independent  right  asserted  by  the  United 
States,  is  inconsistent  with  the  dominion,  paramount  sovereignty,  and 
exclusive  possession,  of  Great  Britain. 

It  has  been  proved,  by  reference  to  the  most  esteemed  authorities  on 
the  law  of  nations,  with  respect  as  well  to  the  general  principle  as  to 
the  opinions  distinctly  given  on  this  point,  that  the  right  of  sovereign- 
ty and  exclusive  possession  extends  over  rivers,  in  common  with  the 
territory  through  which  tlie>  flow. 

The  same  principles  and  the  same  opinions  have  been  cited  to  prove 
that  those  parts  of  the  river  St  Lawrence  which  flow  exclusively 
through  the  British  dominions,  form  no  exception  to  the  general  doc- 
trine so  applied  to  rivers. 

The  existence  of  any  necessity  calculated  to  give  the  United  States, 
in  this  case,  a  special  right,  in  contradiction  to  the  general  rule,  has 
been  distinctly  denied,  and  the  denial  conclusively  supported  by  a  re- 
ference to  known  facts. 

With  no  disposition  to  contest  such  imperfect  claims  and  moral 
obligations,  as  are  consistent  with  the  paramount  rights  of  sovereign- 
ty and  exclusive  possession,  it  has  been  proved,  from  the  authorities 
already  quoted,  that  of  those  imperfect  claims  and  moral  obligations, 
the  territorial  sovereign  is  the  judge. 

The  title  of  the  United  States,  as  derived  fi-om  previous  enjoyment 
at  the  time  when  they  formed  part  of  the  British  empire,  lias  been 
shewn  to  have  ceased  with  the  conclusion  of  that  treaty  by  whicli 
Great  Britain  recognized  them  in  the  new  character  of  an  indepen- 
dent nation. 

It  has  also  been  shown,  that,  while  the  American  Government  ac- 
knowledge that  their  claim  is  now  brought  forward  for  the  first  time, 


H  pOoc.  No.  48.] 

not  only  have  they  had,  since  their  independence,  no  enjoyment,  undw 
treaty,  of  the  navigation  now  claimed,  but  that  the  provisions  of  the 
commercial  treaty,  concluded  in  1794,  and  describiMl  as  having  been 
till  lately  in  force,  are  in  direct  contradiction  with  their  present 
demand. 

It  has  finally  been  made  to  appear,  that  the  treaties  concluded  by 
European  Powers,  as  to  the  navigation  of  rivers,  far  from  invalidat- 
ing  the  rights  of  sovereignty  in  that  particular,  tend,  on  the  contrary, 
to  establish  those  rights;  and  that  tiie  general  principle  of  protection, 
«ssential  to  sovereignty,  dominion,  and  property,  applies  with  pecu- 
liar force  to  the  present  case  of  the  river  St  Lawrence. 


■f -,<» 


■  it,,;  y-^'  '• 
,'(i-_ ',  1'.. .   -■  ■'. 


^ 


» tils' 


